JOHN PHILIP PARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Philip Park appealed his convictions for drug trafficking and related offenses, claiming double jeopardy violations. The court upheld his trafficking conviction but reversed one of his convictions for possession or delivery of a smaller quantity of cocaine, finding it constituted a duplicative charge.
The court held that the one-gram sale was a separate transaction from the three-ounce sale and did not constitute double jeopardy, but that Park's convictions for both delivery and possession of the one gram violated double jeopardy principles, requiring vacation of one of these convictions.
[1] Convictions for possession and delivery of a small quantity of drugs are not a double jeopardy violation when separate from a conviction for trafficking a larger quantity…
[2] Convictions for both possession and delivery of the same contraband constitute a double jeopardy violation.
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Join FLexlaw to unlock all legal intelligence“the legislature intended the crimes of sale and possession to cover only those situations where an individual violated the drug laws without possessing and selling the quantities of contraband that otherwise would constitute 'trafficking.'”
Establishes the purpose of sale and possession statutes as distinct from trafficking statutes
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Join FLexlaw to unlock all legal intelligencePark sold one gram of cocaine to an undercover detective for $80.00. Several hours later, Park sold three ounces of cocaine to the same detective. Par…
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LEHAN, Judge.
Defendant appeals from his convictions for trafficking in cocaine, conspiracy to traffic in cocaine, possession of cocaine, and delivery of cocaine.
He first contends that there was a double jeopardy violation from his convictions for (1) possession and delivery and (2) trafficking. The basis for his contention is that the convictions under (1) concerned a one-gram sample which defendant sold to a detective prior to his sale several hours later to the detective of three ounces which was the basis for his conviction under (2). He argues to the effect that the sale of the one gram was a condition precedent to the sale of the three ounces and that, therefore, both sales were a part of one transac tion. Citing Carawan v. State, 515 So. 2d 161 (Fla.1987), he argues, inter alia, that both sales involved the same evil. We do not agree.
As Carawan says, “the legislature intended the crimes of sale and possession to cover only those situations where an individual violated the drug laws without possessing and selling the quantities of contraband that otherwise would constitute ‘trafficking.’ ” Id. at 170. Here the defendant, through the crimes of possession and delivery of the one gram, violated the drug laws separate and apart from his trafficking of the three ounces. The detective’s purchase of one gram for $80.00 was consummated well prior to his purchase of the three ounces.
Defendant also contends that there was a double jeopardy violation from his convictions for both delivery and possession of the one gram. We agree. See Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988). This contention was properly raised on appeal notwithstanding that it was not raised below. See Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987) (en banc).
Defendant further contends that the trial court erred in failing to instruct the jury on possession and delivery as lesser included offenses of conspiracy to traffic. We disagree. See Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987), rev. den., 519 So. 2d 987 (Fla.1988).
Affirmed in part, reversed in part and remanded. Upon remand the trial court shall vacate one or the other of defendant’s convictions for delivery and possession of the one gram and shall recalculate the scoresheet for the remaining convictions and resentence defendant with respect to the recalculated scoresheet if a different sentence is called for. RYDER, A.C.J., and FRANK, J., concur.
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Watson Grene v. State, 702 So. 2d 510 (Fla. 3d DCA 1996)…no objection in the trial court. In so holding we align ourselves with the Second District decisions in Singleton v. State, 561 So. 2d 1296, 1297 [*512] (Fla.2d DCA 1990); Diaz v. State, 527 So. 2d 300, 302 n. 4 (Fla.2d DCA 1988), and Park v. State, 528 So. 2d 524, 525 (Fla.2d DCA 1988). It also appears to us that the rule we now adopt is more logical than our previous rule. The United States Supreme Court , has explained, “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy C…
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Marinelli v. State, 706 So. 2d 1374 (Fla. 2d DCA 1998)…costs. Reversed and remanded. DANAHY and QUINCE, JJ., concur. . A double jeopardy issue may be raised on appeal notwithstanding that it was not raised in the trial court. See Velez v. State, 528 So. 2d 525, 526 (Fla. 2d DCA 1988); Park v. State, 528 So. 2d 524, 525 (Fla. 2d DCA 1988). . We note that Marinelli had been charged with two counts of aggravated stalking, but the jury acquitted him of those charges, opting instead for misdemeanor stalking. We do not reach the issue of whether two counts of aggr…
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McGLORTHON v. State, 908 So. 2d 554 (Fla. 2d DCA 2005)…cocaine violated his right against double jeopardy. Although McGlorthon did not raise this issue in the trial court, his double jeopardy claim presents an issue of fundamental error that may be raised for the first time on appeal. See Park v. State, 528 So. 2d 524, 525 (Fla. 2d DCA 1988). The State argues that McGlorthon separately possessed two quantities of cocaine so as to constitute two distinct crimes of possession. According to the State, one possession conviction was based on the two pieces of crack c…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987)
- Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)