RICHARD BRAINARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brainard appealed his conviction and concurrent ten-year sentences for three cannabis offenses. The appellate court held that the simple possession charge was a lesser-included offense of the possession-with-intent-to-sell charge, and therefore conviction on both was illegal. The court vacated the possession conviction and remanded for sentencing on the importation charge within the agreed ten-year prison cap.
A conviction and sentence for simple possession of cannabis is illegal when combined with a conviction and sentence for possession with intent to sell of the same cannabis because simple possession is a lesser-included offense. Additionally, importation is an independent crime that requires a separate sentence, though any sentence imposed cannot cause the total to exceed the ten-year prison cap agreed upon in the plea bargain.
[1] Possession of cannabis resin is legally equivalent to possession of cannabis for the purposes of criminal statutes when the definition of cannabis includes its resin.
[2] Possession is a category three lesser-included offense of possession with intent to sell.
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Join FLexlaw to unlock all legal intelligence“Possession of resin of cannabis is the same as possession of cannabis because cannabis is defined as including the resin extracted from any part of the plant.”
Establishes the legal equivalence of cannabis and cannabis resin under Florida statutory definition
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Join FLexlaw to unlock all legal intelligenceBrainard pled nolo contendere to possession of more than 100 pounds of cannabis, possession of more than 100 pounds of cannabis resin with intent to s…
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SCHEB, Judge.
Richard Brainard pled nolo contendere to possession of more than 100 pounds of cannabis, possession of more than 100 pounds of resin of cannabis with intent to sell, and importation of cannabis in violation of Sections 893.13(l)(a)(2), 893.13(l)(c) and 893.-13(l)(d), Florida Statutes (1979). The trial court adjudged him guilty of all three charges and sentenced him to concurrent ten-year prison terms on the two possession offenses. The court, however, declined to sentence Brainard on the importation offense on the ground it was part of the same transaction as the possession offenses. Brainard contends that his sentence for possession of more than 100 pounds of cannabis was illegal. He argues that the offense was a lesser-included offense of possession of more than 100 pounds of resin of cannabis with intent to sell because all offenses involved the same cannabis. We agree.
At the outset we note that Brainard did not properly reserve the right to appeal the sentence. Nevertheless, since he challenges the legality of the sentence, we will address it. Kohn v. State, 289 So. 2d 48 (Fla.3d DCA 1974); Williams v. State, 280 So. 2d 518 (Fla.3d DCA 1973).
Possession of resin of cannabis is the same as possession of cannabis because cannabis is defined as 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, 364 So. 2d 497 (Fla.2d DCA 1978).
Just as we addressed the legality of the sentence imposed on Brainard on the possession charges, we consider whether the trial court erred in failing to sentence him on the charge of importing cannabis. Importation is a crime independent of possession. §§ 893.13(l)(d), (l)(a)(2), Fla.Stat. (1979). Thus, the trial court should have imposed a separate sentence for this offense. Id. § 775.021(4); Fundak v. State, 362 So. 2d 295 (Fla.2d DCA 1978).
Accordingly, we affirm Brainard’s convictions of possession of more than 100 pounds of resin of cannabis with intent to sell and importation of cannabis, and vacate the conviction and sentence for possession of more than 100 pounds of cannabis. We remand and direct the trial court to impose a separate sentence for the importation conviction. Such sentence, however, cannot cause the total sentence to exceed the ten-year prison cap which was a part of the plea bargain accepted by the court.
BOARDMAN, Acting C. J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Borges v. State, 394 So. 2d 1046 (Fla. 4th DCA 1981)…prosecutions, it does not preclude the imposition of multiple punishments at the same criminal proceeding where the court acts pursuant to an explicit legislative mandate. . Rodriquez v. State, 395 So. 2d 555 (Fla. 2d DCA 1981); Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980).…
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Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985)…tire sentence and in failing to state its reasons for retaining jurisdiction. Because an illegal sentence was alleged, the court addressed this issue on direct appeal even though there was no objection in the trial court. See also Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980); Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974). While McClellan allows a direct appeal on an illegal sentence without objection in the trial court, it does not also preclude a rule 3.850 motion as did Pedroso and Snow, which de…
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Rodriguez v. State, 395 So. 2d 555 (Fla. 2d DCA 1981)…ial judge erred when he sentenced these appellants for possession of more than one hundred pounds of marijuana in addition to the sentence he imposed for possession of marijuana of more than one hundred pounds with intent to sell. Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980). Accordingly, we vacate the sentences imposed on the Rodriguezes and Vazquez for possession of more than one hundred pounds of marijuana. Otherwise we affirm. OTT, A.C.J., and CAMPBELL, J., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Clay Leonard Ennis v. State, 364 So. 2d 497 (Fla. 2d DCA 1978)
- Fundak v. State, 362 So. 2d 295 (Fla. 2d DCA 1978)
- Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974)
- Hines v. State, 289 So. 2d 48 (Fla. 2d DCA 1974)
- Purvis v. State, 370 So. 2d 32 (Fla. 2d DCA 1979)