SHELLIE G. LIPSCOMB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shellie Lipscomb appealed his convictions for trafficking in cocaine and possession of cocaine with intent to sell. The court vacated the possession conviction as violating double jeopardy because both charges arose from the same transaction, but affirmed the trial court's one-cell sentencing enhancement for probation violation.
The court held that the convictions for both trafficking and possession violate double jeopardy because they arose from the same transaction and must be merged. The court also held that the trial court properly applied a one-cell sentencing enhancement for probation violation even though the primary offense was not committed while on probation, because the defendant had subsequently violated his probation and was being sentenced for crimes committed while on probation.
[1] Convictions for both trafficking in cocaine and possession of cocaine with intent to sell, arising from the same transaction, violate the constitutional prohibition again…
[2] A trial court may increase a sentence by one cell above the recommended range for violation of probation, even if the primary offense was not committed while the defendan…
Previewing 2 of 3 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“We agree with appellant that the charges arose out of the same transaction, and that the convictions for both trafficking and possession thus violate the constitutional prohibition against double jeopardy.”
Establishes the court's holding that dual convictions from the same transaction violate double jeopardy and must be merged.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLipscomb was convicted of trafficking in cocaine and possession of cocaine with intent to sell. Both charges arose from the same transaction. At sente…
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THREADGILL, Judge.
Shellie Lipscomb appeals his convictions and sentences for trafficking in cocaine in violation of section 893.135, Florida Statutes (1985) and possession of cocaine with intent to sell, in violation of section 893.13.
We agree with appellant that the charges arose out of the same transaction, and that the convictions for both trafficking and possession thus violate the constitutional prohibition against double jeopardy. Carawan v. State, 515 So. 2d 161 (1987). See also Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988) and Lee v. State, 526 So. 2d 777 (Fla. 2d DCA 1988). We, therefore, vacate the conviction and sentence for possession of cocaine with intent to sell.
Lipscomb also argues that the trial court erred in applying a one-cell increase on the guidelines scoresheet for a probation violation because he was not on probation when he committed the primary offense of trafficking in cocaine. We disagree. While it is correct that Lipscomb was not on probation at the time of the primary offense, he subsequently committed other offenses and was placed on probation. At the time he was sentenced, Lipscomb’s probation was revoked and all pending charges, including the new ones that he pled to at that sentencing hearing, were before the court. The trafficking charge was correctly scored as the primary offense and the other charges were correctly scored as additional offenses at conviction. Because Lipscomb had violated probation and was being sentenced for crimes for which he was on probation, the trial judge was within his discretion in increasing the sentence one cell above the recommended range, even though the primary offense was not committed while Lipscomb was on probation. See Peters v. State, 531 So. 2d 121 (Fla.1988) and Rule 3.701(d)(14), Fla.R.Crim.P. Accordingly, we reverse the conviction and sentence for possession of cocaine with intent to sell, and remand for resentencing on the remaining charges. We affirm the court’s decision to increase the recommended sentence by one cell for violation of probation.
Affirmed in part, reversed in part and remanded.
SCHOONOVER, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Peters v. State, 531 So. 2d 121 (Fla. 1988)
- In re the Forfeiture OF United States Currency IN THE Amount OF Seven Thousand ONE Hundred Thirty-Seven Dollars & NO/100 ($7, 526 So. 2d 777 (Fla. 4th DCA 1988)
- LEE v. State, 526 So. 2d 777 (Fla. 2d DCA 1988)