KENNETH LAMAR GAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Lamar Gay appealed sentences for drug offenses, challenging whether he was subjected to double jeopardy by being sentenced separately for both sale of cannabis and possession with intent to sell based on the same conduct. The court held that these charges constituted the same offense under double jeopardy principles and vacated the possession convictions.
The court held that the charges for sale and possession with intent to sell constituted the same offense for double jeopardy purposes because they were identical in law and fact, arising from the same factual occurrence and prescribed by the same statute. Accordingly, the separate probationary sentences for possession with intent to sell were unconstitutional.
[1] Sentencing a defendant for both sale of a controlled substance and possession of the same controlled substance with intent to sell, arising from the same factual occurren…
[2] Two offenses are considered the 'same' for double jeopardy purposes if they are identical in law and fact, meaning a single statute has been violated once.
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“In a pure sense of the definition, two offenses are 'the same' if they are identical in law and fact. That is, that one statute has been violatéd once. Of course merely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical.”
Establishes the legal standard for determining whether offenses constitute the same offense under double jeopardy
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn October 29, 1982, at approximately 12:15 a.m., Gay sold a bag of cannabis for $5 to an undercover investigator. Approximately 30 minutes later, at …
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BOARDMAN, Acting Chief Judge.
Kenneth Lamar Gay appeals the sentences imposed upon him for sale of a controlled substance and possession of a controlled substance with intent to sell, both a violation of section 893.13(l)(a), Florida Statutes (1983).
The state filed two informations, both of which charged appellant with sale of cannabis and possession of cannabis with intent to sell. The record discloses the following factual basis for the charges:
In CF83-1847, on or about the 29th of October, 1982, about 12:15 a.m., the Defendant sold a bag of cannabis for $5 to Investigator Shumate of the Polk County Sheriffs Office; and in CF83-1846, at about 12:45, about a half an hour later, he sold two bags of cannabis for about $12 to Investigator Shumate.
Appellant pled guilty to all the charges. The court withheld adjudication and placed appellant on concurrent terms of three years probation on all four charges.
Appellant contends that the trial court violated the constitutional prohibition against double jeopardy in sentencing him for the charges of possession of cannabis with intent to sell. We agree.
In Bell v. State, 437 So. 2d 1057 (Fla.1983), the Florida Supreme Court defined the term “same offense” for purpose of double jeopardy: “In a pure sense of the definition, two offenses are ‘the same’ if they are identical in law and fact. That is, that one statute has been violatéd once. Of course merely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical.” Id. at 1058-59.
In the instant case, each charge of possession of cannabis with intent to sell is based upon the same factual occurrence as the corresponding sale charge. In addition, the offenses are both proscribed by the same statutory provision, section 893.-13(l)(a). Therefore, the separate charges in each information are identical in law and fact and, thus, the same offense for purposes of double jeopardy.
Accordingly, we vacate the two probationary sentences for possession of canna bis with intent to sell, and the cause is remanded for proper sentencing in light of this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED with directions.
SCHEB and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dukes v. State, 464 So. 2d 582 (Fla. 2d DCA 1985)…ctual occurrence as the corresponding sale charge. Thus, according to appellant, the probationary sentences imposed on each count of possession of a controlled substance with intent to sell must be vacated under this court’s holding in Gay v. State, 447 So. 2d 1007 (Fla. 2d DCA 1984).2 Because we deem it necessary to recede from Gay, this court has determined to submit this opinion en banc pursuant to Florida Rule of Appellate Procedure 9.331. In Gay, this court held that a charge of possession of cannabis wi…
Authorities Cited
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)