JOHN ALBERTO PELAEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for trafficking and possession of cocaine are valid, but the conviction for delivery must be vacated due to double jeopardy.
The appellant was convicted of trafficking, possession, and delivery of cocaine. The trafficking charge stemmed from a large quantity seized upon arre…
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FRANK, Judge.
Pelaez has raised four issues on appeal, only one of which is meritorious. Pelaez challenges his convictions for trafficking in more than 400 grams of cocaine, possession of cocaine and delivery of cocaine on the ground that the convictions violate his right to be free from double jeopardy.
The convictions for trafficking and possession are valid because two quantities of cocaine were involved. Park v. State, 528 So. 2d 524 (Fla. 2d DCA 1988). The larger amount of cocaine, giving rise to the trafficking charge, was seized when Pelaez was arrested. The possession charge stems from a small amount of cocaine seized at the apartment where Pelaez was staying. The delivery conviction must, however, be vacated. The delivery and trafficking charges were the result of a single act: the delivery and sale to an undercover officer of cocaine in excess of 400 grams. See Carawan v. State, 515 So. 2d 161 (Fla.1987).
We, therefore, vacate Pelaez’s conviction for delivery. In all other aspects this matter is affirmed.
SCHOONOVER, A.C.J., and HALL, J., concur.
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Benny L. Hill v. State, 549 So. 2d 1166 (Fla. 4th DCA 1989)…delivery of cocaine conviction. But we affirm appellant’s trafficking in cocaine conviction on the authority of Asmer v. State, 416 So. 2d 485 (Fla.4th DCA 1982), and appellant’s possession of cocaine conviction on the authority of Pelaez v. State, 541 So. 2d 1211 (Fla.2d DCA 1988) review denied, 542 So. 2d 1334 (Fla.1989), and remand for resentencing after proceedings consistent herewith. AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESEN-TENCING CONSISTENT WITH THIS OPINION. DELL, GUNTHER and GAR…
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Amado v. State, 563 So. 2d 736 (Fla. 2d DCA 1990)…t’s first point. Double Jeopardy Violation The defendant argues and the state concedes that he was convicted and sentenced for trafficking in and delivery of the same quantity of cocaine in violation of the double jeopardy clause. Pelaez v. State, 541 So. 2d 1211 (Fla. 2d DCA 1988), review denied, 542 So. 2d 1334 (1989). Upward Departure The defendant’s sentence represents an upward departure from the recommended guideline sentence. The written reason for departure was the quantity of cocaine involved, whi…
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ST. Clair v. State, 575 So. 2d 243 (Fla. 2d DCA 1991)…a separate quantum of contraband retained, distinct 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 b…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Park v. State, 528 So. 2d 524 (Fla. 2d DCA 1988)