KENNETH ANDERSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot be sentenced separately for possession and sale of the same controlled substance when possession is a lesser-included offense of the sale.
Anderson pleaded nolo contendere to possessing and selling methaqualone. The factual basis for both charges was the possession and sale of the same su…
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PER CURIAM.
Upon his nolo contendere pleas, Anderson was convicted and sentenced for violating Section 893.13, Florida Statutes (1979), by possessing (Count I) and selling (Count II) methaqualone. Anderson’s nolo contendere pleas are not impediments to his claim that he could not be sentenced on both counts. Robinson v. State, 373 So. 2d 898 (1979); Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980). They do, however, bar his claim that the convictions on both counts cannot stand. Davis v. State, supra.
The factual basis supporting the two violations was that the same controlled substance was possessed and sold. The offense of possession was, under these circumstances a category four lesser-included offense of the sale under Brown v. State, 206 So. 2d 377 (Fla.1968). Lesser-included offenses are excluded from the separate sentencing requirement of Section 775.021(4), Florida Statutes (1979).
Therefore, the sentence imposed on the possession count (Count I) is reversed and vacated. Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1980); Drayton v. State, 372 So. 2d 983 (Fla. 3d DCA 1979). Cf. Ennis v. State, 364 So. 2d 497 (Fla. 2d DCA 1978) (holding that the robbery charged and proved was a category four lesser-included offense of felony murder). The judgments of conviction are affirmed.
Affirmed in part; reversed in part.
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Claro E. Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990)…ar-dado’s nolo contendere plea waived his claim for relief on this appeal. Prior decisions of this court hold that the effect of a defendant’s plea is to waive any claim of double jeopardy with respect to the convictions involved. Anderson v. State, 392 So. 2d 328 (Fla. 3d DCA 1981); see Hines v. State, 401 So. 2d 878 (Fla. 3d DCA 1981); Taylor v. State, 401 So. 2d 877, 878 (Fla. 3d DCA 1981); Davis v. State, 392 So. 2d 947, 949 n. 2 (Fla. 3d DCA 1980); see also Peel v. State, 150 So. 2d 281, 297 (Fla. 2d DCA…
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Borges v. State, 394 So. 2d 1046 (Fla. 4th DCA 1981)…otion of a free society that constitutional protections can be stripped away by a scrivener’s acuity in drafting a charging document. Cf. Aiello v. State, 390 So. 2d 1205 (Fla. 4th DCA 1980). The Third District Court of Appeal in Anderson v. State, 392 So. 2d 328 (Fla. 3d DCA 1981), dealt with the same issue presented in Portee, but seems to have fashioned a different test, one which I submit is realistic and passes constitutional muster. Like Portee, Anderson was charged with sale and possession. He plead n…
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Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)…in this district, a waiver of a Cleveland -type violation with respect to multiple convictions takes place when the defendant voluntarily pleads guilty to the allegedly duplicitous charges in question. Guardado, 562 So. 2d at 696; Anderson v. State, 392 So. 2d 328 (Fla. 3d DCA 1981). Contra Arnold v. State, 578 So. 2d 515 (Fla. 4th DCA 1991); Kurtz v. State, 564 So. 2d 519 (Fla. 2nd DCA 1990). We reiterate that holding here. Challenge To Sentences Waived. The defendant, however, argues that a mere plea does…
Previewing 3 of 7 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)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980)
- Clay Leonard Ennis v. State, 364 So. 2d 497 (Fla. 2d DCA 1978)
- Drayton v. State, 372 So. 2d 983 (Fla. 3d DCA 1979)
- Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979)