ALVA NICK DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis was convicted on two drug charges and sentenced to five years on count II (unlawful possession of drug paraphernalia). The Florida appellate court vacated the sentence on count II because the information failed to allege facts necessary to make it a felony, requiring that the maximum sentence for count II be limited to a first-degree misdemeanor penalty.
The sentence on count II must be vacated because the information failed to allege facts required to make the paraphernalia charge a felony. The count can be treated only as a first-degree misdemeanor, requiring resentencing with a maximum sentence appropriate to that degree. The trial court's jury instructions, while potentially requiring timely objection, did not constitute fundamental error because the instructions tracked Florida Standard Jury Instructions and no prejudice reaching into the validity of the trial occurred.
[1] A charge of possession of drug paraphernalia constitutes a felony only if the information alleges a prior conviction of the Drug Abuse Law or that the amount of marijuana…
[2] The allegations of each count in an information must be separately considered and not by reference to other counts.
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Join FLexlaw to unlock all legal intelligence“The information failed to charge, as required in Section 893.13(1)(f), either appellant's prior conviction of the Drug Abuse Law or that the amount of marijuana involved exceeded five grams.”
Establishes the defect in the charging information that prevented count II from being properly classified as a felony.
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Join FLexlaw to unlock all legal intelligenceDavis was charged in an information with two counts: (1) possessing more than five grams of marijuana with intent to sell, and (2) unlawfully possessi…
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ERVIN, Judge.
The sentence of five years imposed as to count II of the information charging appellant with unlawfully possessing paraphernalia with the intent that such paraphernalia be used for unlawfully injecting, smoking or using a drug must be vacated since the count does not charge a felony.
Section 893.13(3)(a)4(b), Florida Statutes (1977), provides essentially, depending upon the allegations charged, that possession of paraphernalia shall be either a felony of the third degree or a misdemeanor in the first degree. The information failed to charge, as required in Section 893.13(1)(f), either appellant’s prior conviction of the Drug Abuse Law or that the amount of marijuana involved exceeded five grams. Cf. Pope v. State, 268 So. 2d 173 (Fla.2d DCA 1972); Dicaprio v. State, 352 So. 2d 78 (Fla.4th DCA 1977).
While count I of the information charged appellant with possessing more than five grams of marijuana with intent to sell, the allegations of each count must be separately considered and not by reference to the other. We vacate the sentence imposed in count II and remand the cause to the trial court for the imposition of a sentence not exceeding the maximum provided by law for a misdemeanor in the first degree.
Appellant contends for the first time on appeal that the trial judge’s failure to instruct the jury on the element of intent to sell marijuana as to count I and intent to unlawfully administer drugs as to count II was fundamental error. While we think appellant was required to timely object to the instructions given, Forceier v. State, 133 So. 2d 336 (Fla.2d DCA 1961); Williams v. State, 109 So. 2d 379 (Fla.2d DCA 1959), cert. den., 113 So. 2d 836 (Fla.), we nevertheless conclude that the trial court sufficiently tracked the language contained in Florida Standard Jury Instructions and, by reason of all the instructions given, no prejudice resulted to appellant which reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without . . .” the error. Brown v. State, 124 So. 2d 481, 484 (Fla.1960).
See also State v. Bryan, 287 So. 2d 73, 75 (Fla.1973); Burcham v. State, 338 So. 2d 1138 (Fla.2d DCA 1976); Waters v. State, 298 So. 2d 208 (Fla.2d DCA 1974).
We have considered the remaining points urged for reversal by appellant, determine that they are without merit and otherwise affirm. Remanded for further proceedings consistent with this opinion.
ROBERT P. SMITH, Jr., Acting C. J. and LARRY G. SMITH, J., concur.
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Vernal Earle Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992)…is clear that the defendant was charged and convicted of the first-degree misdemeanor offense of unlawful possession of marijuana [§ 893.-13(l)(f), Fla.Stat. (1981) ]. Cooper v. State, 512 So. 2d 1071, 1073 n. 2 (Fla. 1st DCA 1987); Davis v. State, 371 So. 2d 721 (Fla. 1st DCA 1979); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA), cert. discharged, 283 So. 2d 99 (Fla.1973). This being so, a writ of error coram nobis clearly lies to correct this patent error in the record caused by the clerk. Russ; Lamb. Finall…
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Jones v. State, 385 So. 2d 1042 (Fla. 1st DCA 1980)…aration of his defense. The fact that Count I of the information charged appellant with sexual battery is of no consequence. Each count of the charging document must stand alone and cannot be determined by reference to another count. Davis v. State, 371 So. 2d 721 (Fla.1st DCA 1979). The remaining points urged for reversal by appellant have been considered and rejected. Accordingly, the judgment and sentence is reversed and the case is remanded for a new trial. ERVIN and SHAW, JJ., concur.…
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Cooper v. State, 512 So. 2d 1071 (Fla. 1st DCA 1987)…of contraband— without alleging an amount in excess of 20 grams. We acknowledge that such allegations, by failing to charge that the amount of contraband exceeded 20 grams, charges the defendant only with misdemeanor possession. See Davis v. State, 371 So. 2d 721 (Fla. 1st DCA 1979); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So. 2d 99 (Fla.1973). Hence the pleading document in the instant case substantiated the requested instruction.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ike Brown v. State, 124 So. 2d 481 (Fla. 1960)
- State v. Bryan, 287 So. 2d 73 (Fla. 1973)
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977)
- Williams v. State, 109 So. 2d 379 (Fla. 2d DCA 1959)
- Forceier v. State, 133 So. 2d 336 (Fla. 2d DCA 1961)
- In the Interest of C. H. H. v. State, 298 So. 2d 208 (Fla. 1st DCA 1974)
- Burcham v. State, 338 So. 2d 1138 (Fla. 2d DCA 1976)
- Rigdon v. Webster, 113 So. 2d 836 (Fla. 1959)
- Anderson v. City of N. Miami, 113 So. 2d 836 (Fla. 1959)