KEITH EVAN TESSIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida appellate court reversed Tessier's conviction for simple possession of a controlled substance while affirming his conviction for introducing contraband into a county detention facility, holding that these offenses are not legally separate and therefore constitute double punishment under Florida law.
The court held that these two offenses are not separate offenses because all elements of the simple possession offense under § 893.13 are contained within the elements of the detention facility contraband offense under § 951.22. Therefore, convictions for both violate the prohibition against multiple punishments for the same conduct.
[1] A conviction for possession of a controlled substance is reversed when all elements of that offense are contained within the elements of the offense of introduction or po…
[2] Two offenses are not separate if all elements of one offense are contained within the elements of the other offense.
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“[i]f each crime ... requires an element of proof that the other does not, then ... [t]hey are separate offenses”
The legal test for determining whether two offenses are separate, requiring that each offense have at least one element not required by the other
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Join FLexlaw to unlock all legal intelligenceKeith Evan Tessier was charged with two counts: possession of a controlled substance under Florida Statutes § 893.13 and introduction or possession of…
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PER CURIAM.
We reverse defendant’s conviction and sentence for possession of a controlled substance, a violation of section 893.13, Florida Statutes (1983). We affirm his conviction and sentence for introduction or possession of a controlled substance into or upon the grounds of a county detention facility, a violation of section 951.22, Florida Statutes (1983). We conclude that the trial court was incorrect in denying defendant’s motion to either dismiss one count of the information which alleged both offenses or require the state to elect which was to be prosecuted.
The question here is whether the two offenses are separate offenses. If so, convictions for both offenses are not prohibited. The test is “[i]f each crime ... requires an element of proof that the other does not, then ... [t]hey are separate offenses.” State v. Baker, 456 So. 2d 419 (Fla.1984). In this case, all elements of the simple possession offense under section 893.13 are contained within the elements of the introduction or possession of contraband offense under section 951.22. Section 951.22 proscribes the introduction or possession of contraband into a county detention facility and specifically includes “controlled substances” as being within the definition of contraband. Section 893.13 proscribes the unlawful possession of controlled substances. Thus, we conclude that these two offenses are not separate offenses. See Dees v. State, 397 So. 2d 1145 (Fla. 2d DCA 1981).
Accordingly, the conviction and sentence under section 893.13 are vacated.
Affirmed in part, reversed in part and remanded for proceedings consistent herewith.
SCHEB, A.C.J., and CAMPBELL and LEHAN, JJ., concur.
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Wilcott v. State, 509 So. 2d 261 (Fla. 1987)…that found possession of marijuana, a violation of section 893.13, Florida Statutes (1983), to be a lesser included offense of the simultaneous introduction or possession of the same marijuana into a county detention facility. See Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985); Dees v. State, 397 So. 2d 1145 (Fla. 2d DCA 1981). The district court rejected this argument, however, ruling that sections 893.13 and 944.47 described separate and distinct offenses. The district court affirmed the conviction.…
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Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988)…truction on a necessarily lesser included offense, is facially sufficient. See Wilcott v. State, 509 So. 2d 261 (Fla.1987); Spaziano v. State, 522 So. 2d 525 (Fla. 2d DCA 1988); Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987); Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985). The trial court’s order summarily denying this allegation and the attachments thereto do not refute Newton’s allegation. Accordingly, we reverse the trial court’s order and remand for further consideration of this claim. On rem…
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Wilcott v. State, 472 So. 2d 1389 (Fla. 1st DCA 1985)…category two) lesser included offense of his simultaneous introduction or possession of the same marijuana into the county detention facility, thereby barring prosecution for the latter crime on double jeopardy principles. See also Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985) (reaffirming the Dees holding). Apart from the fact that Dees involved a violation of section 951.22, Florida Statutes, dealing with introduction of contraband into a county jail, and we are here concerned with section 944.47, pr…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Dees v. State, 397 So. 2d 1145 (Fla. 2d DCA 1981)