Fryman

I. Introduction

At the General Election on November 7, 2000, the electorate passed Proposition 36, an initiative entitled the "Substance Abuse and Crime Prevention Act of 2000" (the Act). The Act dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses. In particular, such offenders are placed on probation for mandatory drug treatment instead of "being sent to prison. An uncodified provision of the Act delayed its effective date until July 1, 2001. This provision also made the Act prospective only.

In this case, defendant Tommy Lee Fryman was convicted of a nonviolent drug possession offense before July 1, 2001. Because he had prior serious felony convictions, he was sentenced under the "Three Strikes" law to life in prison. However, had he been convicted after that date, he would have been released on probation for drug treatment.

We conclude that the distinction drawn by the Act's prospective-only provision between those convicted before July 1, 2001, whose judgments are not yet final, and those convicted after that date affected defendant's fundamental interest in liberty. We further conclude that the distinction…