THOMAS JEFFERSON HINES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that while the conviction for possession is affirmed due to waiver of double jeopardy, the sentence for possession must be vacated because it arises from the same transaction as the greater offense of sale.
Defendant was convicted of possession and sale of a controlled substance arising from the same item of narcotics. He appealed, arguing the trial court…
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PER CURIAM.
Defendant, Hines, was charged by information in Count I with possession of a controlled substance and, in Count II, with sale or delivery of a controlled substance. He pleaded not guilty. After jury trial, the defendant was found guilty on both counts. He now appeals and claims, among other things, error in that the trial court violated the single transaction rule by sentencing him on both counts.
We affirm the judgment and sentence for sale and the judgment for possession. However, we vacate the sentence for possession.
The State concedes that the record at trial reflects that Hines’ convictions and sentences arise from the possession and sale of the very same item of narcotics. The effect of the concession is that the offense of possession is a category four lesser-included offense of sale. Anderson v. State, 392 So. 2d 328 (Fla. 3d DCA 1981). While agreeing that Hines’ conviction for possession should be affirmed, we do so only because Hines waived any claim of double jeopardy by failing to raise, in the trial court, the issue of his convictions for the included and greater offense. Anderson v. State, supra; Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980). See: Keefer v. State, 397 So. 2d 1181 (Fla. 3d DCA 1981). That waiver, however, does not affect the sentencing error [Anderson v. State, supra; Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979)] which, because of the State’s concession that Hines was concurrently sentenced for both the greater offense of sale and the included offense of possession, is patent. For the reasons expressed in Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981), we find it improper to burden the trial court with a Rule 3.850 proceeding, the result of which inevitably must be to vacate the sentence imposed for possession.
Therefore, we vacate the sentence on the possession conviction and affirm in all other respects.
Affirmed as amended.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Claro E. Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990)…ief 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 1963), appeal dismissed, 168 So. 2d 147 (Fla.1964), ce…
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Watson Grene v. State, 702 So. 2d 510 (Fla. 3d DCA 1996)…ted). . Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). . We recede also from Mingo v. State, 680 So. 2d 1079, 1080 (Fla.3d DCA 1996); Marion v. State, 674 So. 2d 878, 879 (Fla.3d DCA 1996); Hines v. State, 401 So. 2d 878 (Fla.3d DCA 1981); Taylor v. State, 401 So. 2d 877, 878 (Fla.3d DCA 1981); Keefer v. State, 397 So. 2d 1181 (Fla.3d DCA 1981); Williams v. State, 397 So. 2d 438 (Fla.3d DCA 1981); and Thompson v. State, 368 So. 3d 670 (Fla.3d DCA 1979), to the exten…
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Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)…The defendant, however, argues that a mere plea does not waive a challenge to dual or multiple sentences which are also precluded by the Cleveland rule. Guardado, 562 So. 2d at 696; Taylor v. State, 401 So. 2d 877 (Fla. 3d DCA 1981); Hines v. State, 401 So. 2d 878 (Fla. 3d DCA 1981); Anderson, 392 So. 2d at 328; Davis v. State, 392 So. 2d 947 (Fla. 3d DCA 1980). While this observation is correct, the cases cited do not involve2 and therefore do not apply to the present situation, in which the defendant agreed…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979)
- Riddle v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- D. D. S. v. State, 392 So. 2d 328 (Fla. 3d DCA 1981)
- Anderson v. State, 392 So. 2d 328 (Fla. 3d DCA 1981)
- Keefer v. State, 397 So. 2d 1181 (Fla. 3d DCA 1981)