HUBERT BRADFORD LEEKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hubert Leeks was convicted of possession of cocaine with intent to sell and sale of cocaine. He appealed challenging both his trial court's restriction on his ability to display a facial scar to the jury and the constitutionality of receiving separate convictions for possession with intent to sell and sale. The appellate court affirmed, finding no reversible error on either ground.
First, even assuming arguendo that the trial court misinterpreted Rule 3.250, any error was harmless because Leeks' attorney successfully emphasized the substantial facial scar during opening and closing arguments. Second, no Double Jeopardy violation occurred because Leeks possessed four cocaine rocks but sold only one, meaning two separate crimes were committed and separate convictions were constitutionally permissible.
[1] A defendant's right to open and close final arguments is a substantial procedural right, and its denial constitutes reversible error.
[2] A trial court's erroneous ruling on a defendant's procedural right may be deemed harmless error if the defendant's attorney effectively argued the relevant points to the…
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“it is a substantial procedural right which, if denied to a criminal defendant, constitutes reversible error”
Establishes that the right to opening and closing arguments is a substantial procedural right, though not constitutionally mandated
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Join FLexlaw to unlock all legal intelligenceLeeks was charged with two counts: possession of cocaine with intent to sell and sale of cocaine. A police officer, Davila, testified that he purchase…
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FRANK, Judge.
As the result of a two count information charging Leeks with the possession of cocaine with intent to sell and the sale of that substance, he was convicted by a jury and sentenced to two years of imprisonment on each charge, the sentences to run concurrently. In seeking to overturn his convictions, he raises two points to which we respond in turn.
During the course of the state’s case, a police officer, Davila, identified Leeks as the person from whom he purchased one cocaine rock. Davila testified on cross-examination that he did not observe a scar on Leeks’ face. At the close of the state’s case, Leeks’ attorney asked the trial court to permit Leeks to approach the jury in order that it would be able to examine his face.
The trial court announced that if Leeks were to stand closer to the jury, he would forfeit his ability to open and close the final arguments. In the trial court’s view, Leeks’ proposed action was tantamount to “producing evidence other than the testimony of the defendant” with the result that he would be foreclosed by operation of rule 3.250 of the Florida Rules of Criminal Procedure from the benefit of opening and closing the arguments to the jury.
The trial court did, however, permit Leeks’ attorney to relocate him at the counsel table, presumably placing him closer to the jury, and his attorney opened and closed the final arguments.
Notwithstanding that the right conferred by the rule is not endowed with constitutional sanctity, Herring v. New York, 422 U.S. 853, 863 n. 13, 95 S.Ct. 2550, 2556, n. 13, 45 L.Ed.2d 593 (1975); Preston v. State, 260 So. 2d 501, 504-505 (Fla.1972), it is a substantial procedural right which, if denied to a criminal defendant, constitutes reversible error. Birge v. State, 92 So. 2d 819, 820 (Fla.1957).
Leeks, however, was not denied the procedural right provided in rule 3.250. Even if we were to assume without deciding, that the trial court misperceived the effect upon rule 3.250 of Leeks’ designed presence close to the jurors, such error was harmless. In each of his arguments to the jury, Leeks’ attorney emphasized the facial scar which, it appears from the record, was substantial and traversed the bridge of his nose.
Leeks’ second point challenges the constitutionality of separate convictions and sentences for the possession of cocaine with intent to sell and the sale of cocaine in violation of section 893.13(l)(a), Florida Statutes (1985).
The charges originated in a transaction which occurred on November 20, 1985. On that occasion Leeks possessed four cocaine rocks but only one was sold to Officer Davila. In Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), we passed upon this exact issue. In Gordon the defendant possessed and sold only one cocaine rock. On those facts we found, based upon Carawan v. State, 515 So. 2d 161 (Fla.1987), that the double jeopardy clause was violated when Gordon was convicted of both possession with intent to sell and sale of the same cocaine, each charge arising from a single act. Here, we find no violation of the prohibition against double jeopardy for the reason that Leeks possessed four cocaine rocks but sold only one; three remained in his possession.
Hence, two crimes were committed for which Leeks could, and did, receive separate convictions and sentences. Gordon n. 2 at p. 911.
Accordingly, Leeks’ convictions and sentences are affirmed.
CAMPBELL, C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989)…st v. State, 351 So. 2d 957 (Fla.1977). We find Willingham’s next contention that a double jeopardy violation resulted from the convictions for both sale of cocaine and possession with intent to sell cocaine to be without merit. See Leeks v. State, 529 So. 2d 787 (Fla. 2d DCA 1988). As was the situation in Leeks, here there were two pieces of rock cocaine offered to the officer; the officer purchased one and the defendant retained the other rock in his possession. Under these facts, Leeks authorizes two sepa…
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Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989)…ues that since the police officers testified at trial to the presence of the other rocks of cocaine in the appellant’s possession at the time they purchased the one rock, this case is distinguishable from Gordon and more in line with Leeks v. State, 529 So. 2d 787 (Fla. 2d DCA 1988). In Leeks, as well as in the later similar case of Willingham v. State, 541 So. 2d 1240 [*467] (Fla. 2d DCA 1989) each appellant retained in his possession extra rocks of cocaine which were not sold. It is this salient feature of…
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ST. Clair v. State, 575 So. 2d 243 (Fla. 2d DCA 1991)…from the quantum sold, a separate conviction for possession is proper. Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989); Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989); Pelaez v. State, 541 So. 2d 1211 (Fla. 2d DCA 1988); Leeks v. State, 529 So. 2d 787 (Fla. 2d DCA 1988); Park v. State, 528 So. 2d 524 (Fla. 2d DCA 1988). In viewing the evidence presented at trial, this case is indistinguishable from New-some, Leeks, Willingham, Pelaez, and Park because the perpetrator retained rocks of cocaine wh…
Previewing 3 of 4 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)
- Herring v. New York, 422 U.S. 853 (U.S. 1975)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Birge v. State, 92 So. 2d 819 (Fla. 1957)
- Preston v. State, 260 So. 2d 501 (Fla. 1972)
- Rowe v. State, 260 So. 2d 501 (Fla. 1972)