QUINIDIO ALVAREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Quinidio Alvarez was convicted of both possession and trafficking in cocaine. The Florida appellate court reversed his possession conviction under double jeopardy principles established in Carawan v. State, holding that a defendant cannot be convicted of both trafficking and possession of the same cocaine.
The court held that Alvarez's convictions for both possession and trafficking cannot stand under the double jeopardy analysis established in Carawan v. State. The detective's testimony about Alvarez's invocation of silence was harmless error. The possession conviction was reversed and remanded for vacation of that sentence, while the trafficking conviction was affirmed.
[1] A detective's testimony that a defendant invoked the right to remain silent is subject to the harmless error test.
[2] An impermissible comment on a defendant's right to remain silent is harmless error if there is no reasonable probability that the error contributed to the verdict.
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“although a defendant may be convicted of both sale and possession under the appropriate circumstances, a defendant cannot be convicted of trafficking as well as sale and/or possession.”
Establishes the double jeopardy rule from Carawan that prohibits conviction of both trafficking and possession
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Join FLexlaw to unlock all legal intelligenceAlvarez was convicted at trial of both possession of and trafficking in cocaine. At trial, a detective testified that he read Alvarez his rights, and …
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FRANK, Acting Chief Judge.
The defendant, who had been convicted of both possession of and trafficking in cocaine, has raised two issues for our consideration.
First, Alvarez contends that certain trial testimony of a detective at trial was an impermissible comment on the defendant’s right to remain silent: “I read him his rights and asked him if he understood his rights and he said that he did, but he wished to remain silent.” The impermissible comment, however, triggers the harmless error test of State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Our examination of the entire record reveals not a shred of evidence that might have swayed the jury to acquit Alvarez; and there exists not even the slightest probability that the error contributed to the verdict.
Alvarez’ second contention, grounded upon double jeopardy, does have merit. Alvarez was convicted of and sentenced for both possession and trafficking in contravention of the result reached in Carawan v. State, 515 So. 2d 161, 170 (Fla.1987): “Thus, although a defendant may be convicted of both sale and possession under the appropriate circumstances, a defendant cannot be convicted of trafficking as well as sale and/or possession.” Although the state has urged that an amendment to section 775.021, Florida Statutes,* embodying the “rule of lenity,” essentially overturns that aspect of Carawan in which resort to legislative intent may be warranted, the effective date of the statute was July 1, 1988; thus it is inapplicable to this case. Moreover, even if the statute were given a retrospective application, it provides several exceptions, one of which embodies the possession/trafficking situation. Accordingly, Alvarez’ convictions for both possession and trafficking cannot stand.
We reverse Alvarez' conviction for possession of cocaine and remand for the trial court to vacate the sentence for possession. In all respects, the conviction for trafficking is affirmed.
THREADGILL and PARKER, JJ., concur. *
The amendment provides:
775.021. Rules of construction
4(b) The intent of the Legislature is to convict and sentence each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which tire degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
1988 Fla.Sess.Law Serv. Ch. 88-131, § 7 (West).
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Cited By
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…A 1988); the dissent in Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988); T.J. v. State, 534 So. 2d 811 (Fla. 3d DCA 1988); Meadows v. State, 534 So. 2d 1233 (Fla. 4th DCA 1988); Alvarez v. State, 535 So. 2d 341 (Fla. 2d DCA 1988); Johnson v. State, 535 So. 2d 651 note 3 (Fla. 3d DCA 1988); Roundtree v. State, 536 So. 2d 1141 (Fla. 2d DCA 1988).…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)