CARL A. PURVIS AND JAMES ROBERT PRESCOTT, JR., APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be sentenced for both a greater offense and a lesser-included offense based on the same evidence.
Appellants were convicted of burglary, grand larceny, possession of over five grams of marijuana, and possession of over a hundred pounds of marijuana…
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PER CURIAM.
Appellants were convicted of (1) burglary, (2) grand larceny, (3) possession of more than five grams of marijuana, and (4) possession of more than a hundred pounds of marijuana with intent to sell. Appellants were sentenced to five-years imprisonment on each of the first three convictions, and fifteen years on the fourth. The first three sentences were to run consecutively, and the sentence on the fourth conviction was to run concurrently to the sentences on the first three.
Appellants attack their convictions on several grotinds. We have examined their contentions carefully, and find only one point which merits discussion. Appellants contend that they should not have been sentenced for possession of more than a hundred pounds of marijuana with intent to sell and possession of more than five grams, since both charges were based on possession of the same marijuana. We agree.
It was necessary for the state to establish that appellants possessed more than five grams of marijuana in order to show that they possessed over a hundred pounds with intent to sell. Therefore, possession of more than five grams was a category three lesser-included offense under Brown v. State, 206 So. 2d 377 (Fla.1968). A defendant cannot be sentenced for a lesser-included offense as well as the greater offense. § 775.021(4), Fla.Stat. (1977); Ennis v. State, 364 So. 2d 497 (Fla. 2d DCA 1978).
Accordingly, we vacate each appellant’s conviction and sentence for possession of more than five grams of marijuana. Otherwise, we affirm.
SCHEB, Acting C. J., and OTT and DAN-AHY, JJ., concur.
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McCLENDON v. State, 372 So. 2d 1161 (Fla. 1st DCA 1979)…cannot be sentenced on lesser included offenses arising out of the same criminal transaction as the higher offense. See, e. g., Sellars v. State, 362 So. 2d 33 (Fla. 1st DCA 1978); Ennis v. State, 364 So. 2d 497 (Fla. 2d DCA 1978); Purvis v. State, 370 So. 2d 32 (Fla. 2d DCA 1978), Opinion filed 1979. In Brown v. State, 206 So. 2d 377, 383 (Fla.1968), the court held that larceny is necessarily included in the crime of robbery. See also Taylor v. State, 330 So. 2d 44 (Fla. 1st DCA 1976). Although the state’s…
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Cantrell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981)…d offenses arising out of the same criminal transaction as the higher offense. Sellars v. State, 362 So. 2d 33 (Fla. 1st DCA 1978), cert. discharged, 377 So. 2d 24 (Fla.1979); McClendon v. State, 372 So. 2d 1161 (Fla. 1st DCA 1979); Purvis v. State, 370 So. 2d 32 (Fla. 2d DCA 1978). Although Section 775.021(4) might appear to authorize separate sentences herein, we conclude that double jeopardy principles preclude separate convictions. In State v. Pinder, 375 So. 2d 836 (Fla.1979), the Supreme Court agreed…
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Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980)…s including the resin extracted from any part of the plant. § 893.02(2), Fla.Stat. (1979). Further, possession is a category three lesser-included offense of possession with intent to sell. Brown v. State, 206 So. 2d 377 (Fla.1968); Purvis v. State, 370 So. 2d 32 (Fla.2d DCA 1979). Thus, the court erred in sentencing Brainard for possession of more than 100 pounds of cannabis as well as possession of more than 100 pounds of resin of cannabis with intent to sell. § 775.021(4), Fla.Stat. (1979); Ennis v. State…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Clay Leonard Ennis v. State, 364 So. 2d 497 (Fla. 2d DCA 1978)