JUAN OLIVERIO RODRIGUEZ, ARMANDO ANACEATO VAZQUEZ, AMADO RODRIGUEZ, DOMINGO FRANCISCO CEBALLOS, JUAN MIGUEL SERRA AND MIGUEL ANGEL HERRERA, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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In consolidated appeals of six defendants convicted of felony marijuana possession, the court affirmed all convictions but vacated the sentences imposed on two defendants for simple possession where they were also sentenced for the lesser-included offense of possession with intent to sell arising from the same marijuana and criminal episode.
The convictions of all six defendants are affirmed. However, the sentences imposed on the two Rodriguezes and Vazquez for simple possession must be vacated because simple possession is a lesser-included offense of possession with intent to sell when both involve the same marijuana from a single criminal episode, and Florida law prohibits separate sentences for such offenses.
[1] A conviction for possession of marijuana is a lesser included offense of possession of marijuana with intent to sell when both offenses involve the same marijuana and ari…
[2] Separate sentences cannot be imposed for two offenses when one offense is a lesser included offense of the other.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where, as here, the charge of possession involves the same marijuana which is the subject of the charge of possession with intent to sell, the former offense is a category three lesser included offense of the latter as enunciated in Brown v. State”
Establishes the legal principle that simple possession is a lesser-included offense of possession with intent to sell when involving the same marijuana.
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Join FLexlaw to unlock all legal intelligenceSix defendants were charged with possession of more than one hundred pounds of marijuana and possession of the same marijuana with intent to sell. The…
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DANAHY, Judge.
These consolidated appeals are from convictions and sentences for felony possession of marijuana. A jury found the two Rodri-guezes and Vazquez guilty of the offenses of possession of more than one hundred pounds of marijuana, and possession of more than one hundred pounds of marijuana with intent to sell. The trial judge adjudicated them guilty of each offense and sentenced them to concurrent prison terms of three years on each offense. Ceballos, Serra and Herrera pled nolo contendere to a single count of possession of more than one hundred pounds of marijuana and reserved the right to appeal the denial of their motions to suppress evidence. We find no merit in the argument presented by these three appellants and we therefore affirm their convictions and sentences.
While we also affirm the convictions of the Rodriguezes and Vazquez, we do agree with their contention that their three-year sentences for possession of more than one hundred pounds of marijuana were illegal and must be stricken. These three appellants correctly argue that where, as here, the charge of possession involves the same marijuana which is the subject of the charge of possession with intent to sell, the former offense is a category three lesser included offense of the latter as enunciated in Brown v. State, 206 So. 2d 377 (Fla.1968).
Both offenses in the case at bar involved the same marijuana and arose from a single criminal episode. Under these circumstances our statute specifically prohibits the imposition of separate sentences where one of the offenses is a lesser included offense of the other. § 775.021(4), Fla.Stat. (1979).
Thus, the trial 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.
Cases With Similar Vibessemantic neighbors from the corpus
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Borges v. State, 394 So. 2d 1046 (Fla. 4th DCA 1981)…hat while the Blockbur-ger test can prevent successive 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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C.P. v. State, 505 So. 2d 616 (Fla. 3d DCA 1987)…han 20 grams of cannabis. Under double jeopardy principles, both convictions cannot stand and the adjudication of the lesser offense of simple possession is therefore vacated. Murray v. State, 464 So. 2d 622 (Fla. 2d DCA 1985); Rodriguez v. State, 395 So. 2d 555 (Fla. 2d DCA 1981); see Muwwakil v. State, 435 So. 2d 304 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 417 (Fla.1984). We agree with the trial court that the remaining .charge of possession with intent to sell is a third degree felony rather than a…
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Williams v. State, 464 So. 2d 624 (Fla. 2d DCA 1985)…wo offenses are separate, the test applied is whether “each crime ... requires an element of proof that the other does not_” State v. Baker, 456 So. 2d 419 (Fla.1984); Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985). See also Rodriguez v. State, 395 So. 2d 555 (Fla. 2d DCA 1981). In this case, all of the elements of the simple possession offense are contained in the elements of the possession with intent to sell offense. Therefore, they are not separate offenses and convictions for both are prohibited. Se…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980)