CARLOS RUIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Ruiz was convicted by jury of possession of cocaine under two statutes—general possession and possession on prison grounds. The appellate court reversed his conviction under the general possession statute, finding it was a necessarily lesser included offense of the prison-specific charge, resulting in a double jeopardy violation, and remanded for a new trial on the prison charge with Ruiz allowed to represent himself.
The court reversed Ruiz's conviction under section 893.13(1)(e) because the general possession offense is a necessarily lesser included offense of the prison-specific possession charge, making the dual convictions violative of double jeopardy protections. The court remanded for a new trial on the prison-grounds charge, with Ruiz permitted to represent himself based on the trial judge's hearing finding that he intelligently waived counsel.
[1] A defendant has the right to represent himself, but this right must be knowingly and intelligently waived.
[2] A trial court must conduct a hearing to determine if a defendant's waiver of counsel and election to represent himself is knowing and intelligent.
Previewing 2 of 5 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“All elements of the simple possession offense under section 893.13 are contained within the elements of the possession of contraband offense within a prison under section 944.47(l)(c). Thus, the two offenses are not separate.”
Establishes the necessarily lesser included offense analysis that forms the basis for the double jeopardy violation
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Join FLexlaw to unlock all legal intelligenceRuiz was charged with two counts: possession of cocaine under Florida Statutes section 893.13(1)(e) and possession of cocaine upon the grounds of a st…
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WIGGINTGN, Judge.
Appellant appeals his convictions, after trial by jury, of possession of cocaine, in violation of section 893.13(l)(e), Florida Statutes, and possession of cocaine upon the grounds of a state correctional institution, in violation of section 944.47, Florida Statutes. We reverse appellant’s conviction under section 893.13(l)(e), Florida Statutes, and remand for a new trial on the remaining count.
In his first point on appeal, appellant challenged the trial court’s denial of his motion to discharge his public defender and allow him to represent himself. After consideration of the argument made on this point and after a thorough review of the record, we remanded this cause to the trial judge for the purpose of holding a hearing at which adequate inquiry was to be made of appellant’s desire to represent himself. Upon remand, the trial judge held a hearing and entered an order determining that appellant did voluntarily and intelligently elect to waive counsel and represent himself and concluded that appellant is capable of representing himself. Therefore, this cause is reversed and remanded for a new trial at which appellant shall be allowed to represent himself.
The remand for a new trial applies only to the charge of possession of cocaine upon the grounds of a state correctional institution, in violation of section 944.47. At the close of the evidence at appellant’s original trial, defense counsel moved for a judgment of acquittal on the possession of cocaine charge under section 944.47 on the ground that the evidence did not show that appellant had introduced contraband into or had attempted to take it from the grounds of the prison. The trial judge ruled that the charge under that statute would be limited to possession of cocaine upon the prison grounds. Counsel then moved to merge counts one and two into one count of possession of cocaine within the prison system since possession of cocaine is included within the elements of the offense of possession of cocaine within the prison.
The trial court erred in denying the motion to merge the counts and in effect dismissing the possession of cocaine charge under section 893.13(l)(e). Since the trial judge ruled that the charge under 944.-47(l)(c) would be limited to possession of cocaine in a prison, the charge under 893.-13(l)(e) is a necessarily lesser included offense of that charge. All elements of the simple possession offense under section 893.13 are contained within the elements of the possession of contraband offense within a prison under section 944.47(l)(c). Thus, the two offenses are not separate. To have charged and convicted appellant under both offenses amounted to a violation of his right against double jeopardy. Compare Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985).
Appellant’s conviction under section 893.-13(l)(e) is reversed and this cause is remanded for a new trial on the charge filed pursuant to section 944.47(l)(c), in light of the order entered by the trial judge on remand on appellant’s right to represent himself.
BOOTH, C.J., and BARFIELD, J., concur.
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Cited By
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Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994)…intent to sell it under section 893.13(1)(a). Thus possession with intent to sell under-893.13(1)(a) is a necessarily included lesser offense of possession with intent to sell within two hundred feet of a public housing facility. See Ruiz v. State, 488 So. 2d 895 (Fla. 1st DCA 1986) (simple possession of [*182] cocaine was a necessarily included lesser offense of possession of cocaine within a prison). Accordingly, we remand this cause with directions to enter a judgment of guilt as to section 893.13(1)(a)(…
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Brooks v. State, 529 So. 2d 313 (Fla. 1st DCA 1988)…n inmate while on the grounds of a correctional institution. See Wilcott v. State, 472 So. 2d 1389 (Fla. 1st DCA 1985), reversed on other grounds, 509 So. 2d 261 (Fla.1987). See also Henry v. State, 492 So. 2d 485 (Fla. 5th DCA 1986); Ruiz v. State, 488 So. 2d 895 (Fla. 1st DCA 1986). The holdings in the above cases did not involve the precise issue raised in the case at bar: whether possession by an inmate must be upon the grounds of a penal institution. Wilcott addressed the question of whether someone char…
Authorities Cited
- Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985)