ROOSEVELT GLENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roosevelt Glenn appeals the denial of post-conviction relief, challenging dual convictions and sentences for trafficking in and delivery of the same drugs (heroin and cocaine) as violating double jeopardy principles established in Carawan v. State. The Second District reversed, finding that double jeopardy arguments may be raised via post-conviction relief and that separate convictions for trafficking and delivery of the same substance from a single criminal act are improper.
Dual convictions and sentences for trafficking in and delivery of the same controlled substance violate double jeopardy principles and may be properly raised through post-conviction relief. Convictions and sentences for counts V and VI (delivery charges) must be vacated, leaving only the trafficking convictions (counts III and IV) to stand.
[1] A double jeopardy argument may be raised properly via a motion for post-conviction relief.
[2] Separate convictions and sentences for trafficking in and delivery of the same substance may be impermissible under double jeopardy principles.
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Join FLexlaw to unlock all legal intelligence“a double jeopardy argument may be raised properly via a motion for post-conviction relief”
Establishes that post-conviction relief is the proper procedural vehicle for raising double jeopardy challenges to sentences imposed before relevant legal changes
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Join FLexlaw to unlock all legal intelligenceGlenn was convicted of four drug-related offenses: trafficking in heroin (count III), trafficking in cocaine (count IV), delivery of heroin (count V),…
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PARKER, Judge.
Glenn appeals the denial of a series of motions for post-conviction relief. Only one issue raised merits discussion.
Glenn was convicted of numerous drug charges contained in a multi-count information, which included count III charging trafficking in heroin, count IV charging trafficking in cocaine, count V charging delivery of heroin, and count VI charging delivery of cocaine. The convictions were affirmed by this court.1
In his motion for post-conviction relief, Glenn alleges separate convictions and sentences for trafficking in and delivery of each substance are impermissible under Carawan v. State, 515 So. 2d 161 (Fla. 1987),2 since they constitute double jeopardy. At the hearing on Glenn’s motion, the state conceded that both counts III and V referred to the same heroin and that counts IV and VI referred to the same cocaine. The trial court denied Glenn’s motion, observing that although it believed Carawan did apply to prevent the dual convictions, it was compelled to deny the motion based upon Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988), review denied, 536 So. 2d 244 (Fla.1988).
Harris involved convictions for armed robbery and possession of a firearm during the commission of a felony resulting from the same criminal act. At the time of the original sentencing, these two convictions were proper. State v. Gibson, 452 So. 2d 553 (Fla.1984). Following the affirmance of these convictions on appeal, the supreme court overruled Gibson and held the legislature did not intend dual punishment for a single criminal act of displaying a firearm and of carrying a firearm while committing a robbery. Hall v. State, 517 So. 2d 678 (Fla.1988). Harris moved for post-conviction relief, which was denied. Upon review of that order, the first district observed that there was nothing in the supreme court’s decision in Hall which would apply the holding retroactively or provide that dual convictions for a single act are fundamental error. Harris appears to be in conflict with this court’s decision in Kraus v. State, 491 So. 2d 1278 (Fla. 2d DCA 1986). In 1984, Kraus had pleaded guilty to charges of manslaughter by intoxicated driver and manslaughter by culpable negligence, both of which stemmed from a single death. This court observed that a double jeopardy argument may be raised properly via a motion for post-conviction relief, citing as authority Cantrell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981), rev’d on other grounds, 417 So. 2d 260 (Fla.1982). As here, Kraus dealt with a sentence which was imposed prior to decisions3 invalidating similar sentences upon double jeopardy grounds.
We reverse the order denying Glenn post-conviction relief and remand this case to the trial court to vacate the convictions and sentences contained in counts V and VI of the information. The defendant need not be present for this proceeding. Although we are aware that the supreme court denied review in Harris, we certify conflict with Harris and adhere to this court’s opinion in Kraus.
Reversed and remanded.
RYDER, A.C.J., and LEHAN, J., concur. . Glenn v. State, 512 So. 2d 223 (Fla. 2d DCA 1987), cert. denied, — U.S.-, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988).
. This court has applied the double jeopardy rationale in Carawan to prohibit the imposition of separate sentences for possession, delivery, and trafficking in the same illegal drug. Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987).
.See Houser v. State, 474 So. 2d 1193 (Fla.1985); State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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State v. Smith, 547 So. 2d 613 (Fla. 1989)…ny more, petitions for postconviction relief grounded on Cara-wan. See Merckle v. State, 541 So. 2d 1312 (Fla. 2d 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 obt…
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State v. Glenn, 558 So. 2d 4 (Fla. 1990)…McDonald, justice. We have for review Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988), in which the district court certified conflict with Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), review denied, 536 So. 2d 244 (Fla.1988). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We quash Glenn and approve Harris.…
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Libardo J. Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988)…ure 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 unau…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- State v. Gibson, 452 So. 2d 553 (Fla. 1984)
- Ramsey v. State, 474 So. 2d 1193 (Fla. 1985)
- Houser v. State, 474 So. 2d 1193 (Fla. 1985)
- Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988)
- State v. Cantrell, 417 So. 2d 260 (Fla. 1982)
- State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985)
- Cantrell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981)
- Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987)