LESLIE PORTEE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a defendant convicted of both possession and sale of marijuana in a single criminal transaction may be sentenced separately for each offense, as they are discrete statutory offenses and neither is a lesser included offense of the other.
Separate convictions and sentences for possession and sale are proper under section 775.021(4), Florida Statutes, because possession and sale are discrete offenses and neither constitutes a lesser included offense of the other when they are charged under different statutory subsections with different elements.
[1] Separate convictions and sentences are proper for offenses committed during a single criminal episode, excluding lesser included offenses.
[2] When two statutory offenses have the exact same essential constituent elements, or one offense includes all the elements of the other, they are considered the same offens…
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Join FLexlaw to unlock all legal intelligence“Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode”
The controlling statute authorizing separate sentences for multiple offenses arising from a single criminal transaction, with express exclusion for lesser included offenses
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Join FLexlaw to unlock all legal intelligencePortee was charged with and convicted of both possession and sale of marijuana stemming from a single criminal episode. Count one charged only sale, w…
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ADKINS, Justice.
This cause is before the Court on petition for review of a decision of the district court of appeal on the ground that it expressly and directly conflicts with a decision of another district court of appeal. The decision below, Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980), conflicts with Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979), cert. denied, 385 So. 2d 762 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Williams has been disapproved. Smith v. State, 430 So. 2d 448 (Fla.1983). Petitioner was charged with and convicted of both possession and sale of marijuana and was given separate sentences for the two offenses. On appeal he argued that under the “single-transaction rule” he could only be sentenced for the more serious of the two offenses. The district court disagreed, holding that under section 775.-021(4), Florida Statutes (1977), separate convictions and sentences were proper since possession and sale are discrete offenses. This subsection reads as follows:
(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
The decision of the district court is correct. In Borges v. State, 415 So. 2d 1265 (Fla.1982), we held that when more than one offense may be charged and proven based on a single episode, transaction, or course of conduct, separate convictions and sentences are proper. The statute excludes lesser included offenses, thus indicating an intent not to allow multiple punishments when there is but one offense.
If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events. If it is established that an offense is a lesser included offense of a greater offense also charged, the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses. Bell v. State, 437 So. 2d 1057 (Fla.1983) (holding that sale and possession of controlled substances were lesser included offenses of trafficking in illegal drugs).
In the case sub judice, one subsection of the statute proscribed sale or possession with intent to sell. Another subsection proscribes the possession of more than five grams. The information in count one charged only the sale. Count two alleged defendant possessed more than five grams of the substance. Since possession was not charged in count one, count two is not a lesser included offense. Defendant was properly convicted and sentenced on both counts. Smith v. State.
The decision of the district court of appeal is approved.
It is so ordered.
ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)…require possession as an element, and the crime of possession does not require sale as an element. The state further relies on several lower court cases to support its argument. In Portee v. State, 392 So. 2d 314, 315 (Fla. 2d DCA 1980), approved, 447 So. 2d 219 (Fla. 1984), the court concluded that possession is not a lesser-included offense of sale: While a seller of marijuana might in the ordinary case also possess the marijuana sold, possession is not an essential aspect of the sale. Similarly, in Dau…
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Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984)…(see Garcia v. State, 444 So. 2d 969, Fla. 5th DCA 1983), or that because Bell was not final when Hawkins was issued, Bell is actually the latest pronouncement of the supreme court and that it recedes from Hawkins as well. See also, Portee v. State, 447 So. 2d 219 (Fla.1984). We note that in Squires v. State, 450 So. 2d 208 (Fla.1984), the Supreme Court, in dictum, has indicated that Hegstrom and its sentencing restriction in felony murder situations is still viable. We hope the court will clear up the confu…
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Wheeler v. State, 549 So. 2d 687 (Fla. 1st DCA 1989)…ith determined that possession of a controlled substance in violation of section 893.13(l)(e), Florida Statutes (1979),8 was not an offense included in the sale of a controlled substance proscribed by section 893.13(l)(a). See also, Portee v. State, 447 So. 2d 219 (Fla.1984) (following Smith, defendant properly convicted and sentenced for sale and possession of more than five [*691] grams of marijuana); cf. State v. Daophin, 533 So. 2d 761 (Fla.1988) (simple possession is not a necessarily lesser included off…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Borges v. State, 415 So. 2d 1265 (Fla. 1982)
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- Smith v. State, 430 So. 2d 448 (Fla. 1983)
- Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980)
- Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979)