JOHNNIE LEE WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnnie Lee Williams appealed his conviction for possession of a controlled substance and possession with intent to sell cocaine. The court held that simple possession and possession with intent to sell are not separate offenses because all elements of simple possession are contained within the possession with intent to sell offense, requiring reversal of the simple possession conviction while affirming the possession with intent to sell conviction.
Simple possession and possession with intent to sell are not separate offenses because all elements of simple possession are contained within the elements of possession with intent to sell. Therefore, convictions for both offenses are prohibited, and the conviction and sentence for simple possession must be vacated while the conviction for possession with intent to sell is affirmed.
[1] A conviction for simple possession is prohibited when a defendant is also convicted of possession with intent to sell, as the elements of simple possession are contained…
[2] A guilty plea to charges, where the right to appeal has not been reserved, precludes appellate review of those charges, even if the underlying statute has been declared u…
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Join FLexlaw to unlock all legal intelligence“each crime ... requires an element of proof that the other does not”
The test for determining whether two offenses are separate and can both be charged and convicted upon
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Join FLexlaw to unlock all legal intelligenceAppellant Johnnie Lee Williams was convicted of possession of a controlled substance under section 893.13(1)(e) and possession with intent to sell und…
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CAMPBELL, Acting Chief Judge.
Appellant, Johnnie Lee Williams, appeals his conviction and sentence for possession of a controlled substance, a violation of section 893.13(l)(e), Florida Statutes (1981), and possession with intent to sell the same controlled substance, a violation of section 893.13(l)(a)(2), Florida Statutes (1981). We reverse appellant’s conviction and sentence for simple possession and affirm his conviction and sentence for possession with intent to sell.
Appellant also appeals his conviction for obstruction of justice by false information, a violation of section 843.035, Florida Statutes (1981), and loitering, a violation of a Lee County ordinance. Even though section 843.035 has been declared unconstitutional, we do not have jurisdiction to consider this issue on appeal since appellant pled guilty to the charges and did not reserve the right to appeal. See Bunnell v. State, 453 So. 2d 808 (Fla.1984). We therefore dismiss appellant’s appeal as to those two guilty pleas without prejudice to his right to file a motion pursuant to Florida Rule of Criminal Procedure 3.850, if appropriate.
The remaining question on appeal is whether the offense of simple possession and the offense of possession with intent to sell are separate offenses. If the two offenses are not the same, convictions for both are not prohibited. In determining whether the two offenses are separate, the test applied is whether “each crime ... requires an element of proof that the other does not_” State v. Baker, 456 So. 2d 419 (Fla.1984); Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985). See also Rodriguez v. State, 395 So. 2d 555 (Fla. 2d DCA 1981). 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Murray v. State, 464 So. 2d 622 (Fla. 2d DCA 1985)…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…
Authorities Cited
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Bunnell v. State, 453 So. 2d 808 (Fla. 1984)
- Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985)
- Rodriguez v. State, 395 So. 2d 555 (Fla. 2d DCA 1981)
- Murray v. State, 464 So. 2d 622 (Fla. 2d DCA 1985)