LIBARDO J. GONZALEZ-OSORIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Libardo Gonzalez-Osorio appealed the summary denial of his Rule 3.850 postconviction motion challenging his consecutive sentences for cocaine trafficking and possession. The appellate court affirmed the rejection of his sentencing guideline departure claim but reversed and remanded his double jeopardy claim for further proceedings.
The court affirmed the rejection of the sentencing departure claim as procedurally improper for Rule 3.850, but reversed and remanded the double jeopardy claim because the defendant made a prima facie showing that his convictions stemmed from a single transaction involving a single quantum of controlled substance, making the multiple punishment unauthorized.
[1] A claim that a trial court improperly departed from recommended sentencing guidelines must be raised on direct appeal, not in a motion for postconviction relief.
[2] A motion for postconviction relief is an appropriate vehicle to address claims of double jeopardy violations arising from multiple convictions and sentences for offenses…
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Join FLexlaw to unlock all legal intelligence“double jeopardy problems of the sort he raises are appropriately addressed via Rule 3.850”
Establishes that double jeopardy claims are properly cognizable in postconviction proceedings under Rule 3.850, unlike sentencing departure claims.
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Join FLexlaw to unlock all legal intelligenceGonzalez-Osorio was sentenced on September 5, 1986, to consecutive sentences of thirty years for trafficking in cocaine and five years for possession …
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SCHEB, Acting Chief Judge.
Libardo Gonzalez-Osorio appeals the summary denial of his motion for postcon-viction relief. We affirm in part and reverse in part.
Gonzalez-Osorio is presently serving consecutive sentences of thirty years and five years, imposed on September 5, 1986, for trafficking in cocaine and possession of cocaine. In his motion, he claims that the trial court improperly departed from the recommended guideline sentence and that his separate convictions and sentences for trafficking and possession of cocaine constitute a double jeopardy violation.
As to the first issue, Gonzalez-Oso-rio should have argued the sufficiency of the reasons for departure on direct appeal, if at all. The trial court properly refused to consider this claim in a proceeding brought under Florida Rule of Criminal Procedure 3.850. Trimble v. State, 511 So. 2d 403 (Fla. 2d DCA 1987).
As to Gonzalez-Osorio’s second contention, this court has recently held that double jeopardy problems of the sort he raises are appropriately addressed via Rule 3.850. Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988). We find that Gonzalez-Osorio has made a prima facie showing that his convictions and sentences stem from a single transaction involving a single quantum of a controlled substance, in which instance the multiple punishment is unauthorized. Carawan v. State, 515 So. 2d 161 (Fla.1987); Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987).
We affirm in part and reverse in part with directions that on remand, the trial court examine the files and records in this case to determine whether anything contained therein conclusively refutes Gonzalez-Osorio’s double jeopardy argument. If so, the court should attach any such documentation to its order. Alternatively, an evidentiary hearing may be necessary to resolve the question. If, on the other hand, the record actually supports Gonzalez-Oso-rio’s argument, the court should vacate the judgment and sentence for possession of cocaine. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain further appellate review.
HALL and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Smith, 547 So. 2d 613 (Fla. 1989)…DCA 1989); Spadaro v. State, 539 So. 2d 1169 (Fla. 2d DCA 1989); Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989); Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988); and Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988), all holding that Carawan is applicable to convictions obtained prior to its rendition. Contra, Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), review denied, 536 So. 2d 2…
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Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)…70 (Fla.1988); McCrae v. State, 510 So. 2d 874 (Fla.1987); Armstrong v. State, 429 So. 2d 287 (Fla.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983); Smith v. State, 543 So. 2d 316 (Fla. 5th DCA 1989); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988), rev. denied, 544 So. 2d 199 (Fla.1989); DiSavoia v. State, 522 So. 2d 84 (Fla. 2d DCA 1988), rev. denied, 529 So. 2d 693 (Fla.1988). .See Florida Rule of Criminal Procedure 3.800(a). An illegal sentence can be corrected under Ru…
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Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989)…So. 2d 1157 (Fla. 5th DCA 1988). Further, this court has held that Carawan is retroactively applicable to convictions which were obtained prior to the opinion’s rendition. Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988). Contra Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), rev. denied, 536 So. 2d 244 (Fla.1988) (reaching a contrary holding). Accordingly, we hold that the trial court erred in summarily denying the double jeopardy contention in…
Previewing 3 of 7 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)
- Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988)
- Trimble v. State, 511 So. 2d 403 (Fla. 2d DCA 1987)
- Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987)
- State v. Delaney, 517 So. 2d 696 (Fla. 2d DCA 1987)