JIMMY LEE MURRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed defendant's convictions for simple possession of heroin and cocaine while affirming his convictions for possession with intent to sell those same drugs. The court held that simple possession is an included offense of possession with intent to sell, making separate convictions for both crimes from a single event impermissible.
Simple possession under Florida Statute 893.13(1)(e) is an included offense of possession with intent to sell under 893.13(1)(a), so a defendant cannot be separately convicted of both crimes arising from the same drug and event. The convictions for simple possession must be reversed while the convictions for possession with intent to sell are affirmed.
[1] A conviction for simple possession of a controlled substance is an included offense of possession with intent to sell the same controlled substance.
[2] Separate convictions cannot arise from a single criminal event if the elements of one offense are entirely contained within the elements of another.
Previewing 2 of 4 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 determining whether separate convictions may flow from a single event one looks at the statutory elements of the charged crimes, as opposed to the language of the charging document. If each crime, under the respective statutes, requires an element of proof that the other does not, then one is not an included offense of the other.”
Establishes the controlling test from Baker v. State for determining whether two crimes arising from a single event are separate convictions or one is an included offense of the other.
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Join FLexlaw to unlock all legal intelligenceJimmy Lee Murray was charged with and convicted of four drug-related offenses: possession of heroin, possession with intent to sell heroin, possession…
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LEHAN, Judge.
We reverse defendant’s convictions and sentences for possession of heroin and possession of cocaine, violations of section 893.13(l)(e), Florida Statutes (1983). His convictions and sentences for possession with intent to sell heroin and for possession with intent to sell cocaine, violations of section 893.13(l)(a), Florida Statutes (1983), are affirmed. We agree with defendant’s contention that the convictions for possession with intent to sell heroin and for simple possession of heroin are impermissible as separate convictions flowing from a single event. We agree also with defendant’s contention that the convictions for possession with intent to sell cocaine and for simple possession of cocaine are impermissible for the same reason.
Defendant contends that all of the elements of simple possession under section 893.13(l)(e) are contained within the crime of possession with intent to sell under section 893.13(l)(a). The state, on the other hand, argues that the elements of section 893.13(l)(a) do not necessarily include the elements of section 893.13(l)(e). Section 893.13(l)(a) makes it unlawful “to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver.” (Emphasis added.) Therefore, the state argues, the element of possession which is necessary for a violation of section 893.13(l)(e) is not necessary for a violation of section 893.13(l)(a).
The controlling test to determine whether two convictions growing out of a single criminal event are permissible is stated in Baker v. State, 456 So. 2d 419, 420 (Fla.1984).
In determining whether separate convictions may flow from a single event one looks at the statutory elements of the charged crimes, as opposed to the language of the charging document. If each crime, under the respective statutes, requires an element of proof that the other does not, then one is not an included offense of the other. They are separate offenses.
We disagree with the state’s argument because, pursuant to the Baker test for determining when separate crimes exist from a single event, the crime of simple possession under section 893.13(l)(e), does not contain an element not in the other crime involved here. That is, all of the elements of the crime of possession under section 893.13(l)(e) are contained in the offense of possession with intent to sell under section 893.13(l)(a).
We recognize, as the state argues, that another portion of section 893.13(l)(a) defines the offense of sale of a controlled substance which does not necessarily require the element of possession. However, we treat section 893.13(l)(a) as defining possession with intent to sell, one of the crimes involved here, as a crime separate and apart from the remaining portions of section 893.13(l)(a) concerning manufacture, sale or delivery. See Dukes v. State, 464 So. 2d 582 (Fla. 2d DCA 1985) (en banc). Accordingly, our application of the Baker test is only relative to the crimes of simple possession under section 893.13(l)(e) and possession with intent to sell under section 893.13(l)(a). See Williams v. State, 464 So. 2d 624 (Fla. 2d DCA 1985).
The state also argues that there was no proof that the heroin involved was the same for the simple possession and the possession with intent to sell crimes and that the cocaine involved was the same for the simple possession and the possession with intent to sell crimes. Defendant pleaded nolo contendere to all the charges. However, defense counsel stated at a hearing on defendant’s motion in arrest of judgment that the heroin and cocaine were the same for the corresponding simple possession and possession with intent to sell crimes. The state did not disagree. Also, the record shows that at one point in the proceedings the state, contrary to its present position, conceded that defendant could not be convicted for all four of the crimes. That statement seems to have been an apparent acknowledgement that the cocaine and heroin were the same controlled substances involved in both the possession and possession with intent to sell crimes.
In light of the above, we reverse the two convictions under section 893.13(l)(e), i.e., possession of heroin and possession of cocaine, the lesser degree offenses of the four convictions.
Reversed and remanded for proceedings consistent herewith.
CAMPBELL, A.C.J., and FRANK, J., concur.
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C.P. v. State, 505 So. 2d 616 (Fla. 3d DCA 1987)…13(l)(a), Fla.Stat. (1985), the same quantity of less than 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 wit…
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Williams v. State, 464 So. 2d 624 (Fla. 2d DCA 1985)…. 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. See Murray v. State, 464 So. 2d 622 (Fla. 2d DCA 1985). Accordingly, appellant’s conviction and sentence for possession of a controlled substance is vacated. Appeal dismissed in part and reversed in part. LEHAN and FRANK, JJ., concur.…
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Albury v. State, 585 So. 2d 509 (Fla. 3d DCA 1991)…e offense of possession is subsumed within the greater offense of possession with intent to sell. Accordingly, the conviction and sentence for the lesser offense, count II, must be vacated. See § 775.-021(4)(b)(3), Fla.Stat. (1989); Murray v. State, 464 So. 2d 622, 623 (Fla. 2d DCA 1985); Rodriguez v. State, 395 So. 2d 555, 556 (Fla. 2d DCA 1981). The conviction and sentence on count II are vacated. As there is no challenge to the conviction and sentence on count I, they are affirmed. Affirmed in part, re…
Authorities Cited
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Dukes v. State, 464 So. 2d 582 (Fla. 2d DCA 1985)
- Williams v. State, 464 So. 2d 624 (Fla. 2d DCA 1985)