In apparent defiance of California's "three strikes" law, a state appeals court has upheld a judge's refusal to sentence a nonviolent second-time felon to prison for at least four years.

Superior Court Judge Lawrence Antolini sentenced Jeffrey Dean Missamore to probation and a drug treatment program in July for possessing a marijuana cigarette on a jail honor farm. Possessing drugs in jail is a felony.Because Missamore had a 1986 burglary conviction, a provision of the "three strikes" law that took effect in March prohibited probation and required a prison term of twice the normal sentence for the crime. That sentence could be waived only at the prosecutor's request.

But Antolini ruled that the "three strikes" requirement interfered with a judge's authority over sentencing. He also said a long prison term for Missamore would violate the state ban on cruel and unusual punishment.

On Friday, the prosecutors' attempt to overturn the judge's decision was rejected 2-1 by a state appeals court.

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"I'm not sure that it's a final step but it's certainly a marvelous step," said Missamore's lawyer, public defender H. Bruce Kin-ni-son.

"It took an awful lot of courage for Judge Antolini to do this . . . knowing that there was so much public feeling against crime," Kin-ni-son said.

The state attorney general's office said Monday it did not know whether it would appeal.

Missamore, 32, was serving a 120-day sentence on a jail honor farm for shoplifting when he was caught with the marijuana cigarette in April.

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