ROBERT L. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Convictions and sentences for both sale and possession of cocaine based on a single act violate double jeopardy rights.
Defendant sold cocaine to an undercover detective and was found guilty of both sale and possession. The court sentenced him to seven years imprisonmen…
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SCHEB, Acting Chief Judge.
The defendant claims his conviction and sentence for sale and possession of cocaine violates the federal and state constitutional prohibition against double jeopardy. We agree.
The state charged the defendant with sale and possession of cocaine, violations of sections 893.13(l)(a) and 893.13(l)(e), Florida Statutes (1987). The offenses occurred when the defendant sold cocaine “hand to hand” to a St. Petersburg undercover detective for $20. The jury found the defendant guilty of both charges. The court sentenced the defendant to seven years’ imprisonment.
Convictions and sentences for both sale and possession based on a single act violate an individual’s double jeopardy rights. Hatten v. State, 542 So. 2d 1061 (Fla. 2d DCA 1989); Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988). See also, Blanca v. State, 532 So. 2d 1327 (Fla. 3d DCA 1988). We reject the state’s argument that the defendant cannot raise this claim on appeal because he failed to raise it in the trial court. Park v. State, 528 So. 2d 524 (Fla. 2d DCA 1988); Velez v. State, 528 So. 2d 525 (Fla. 2d DCA 1988).
We affirm defendant’s conviction and sentence for sale of cocaine, but we vacate his conviction and sentence for possession of cocaine. We remand for resentencing.
HALL and THREADGILL, JJ., concur.
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State v. Johnson, 561 So. 2d 274 (Fla. 1990)…PER CURIAM. We accepted for review Johnson v. State, 543 So. 2d 1294 (Fla. 2d DCA 1989), based on apparent conflict with Carawan v. State, 515 So. 2d 161 (Fla.1987). Upon reviewing the briefs, we have determined that no conflict exists and that jurisdiction improvidently was granted. Accordingly, the petition for rev…
Authorities Cited
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Park v. State, 528 So. 2d 524 (Fla. 2d DCA 1988)
- Hatten v. State, 542 So. 2d 1061 (Fla. 2d DCA 1989)
- Garcia v. State, 532 So. 2d 1327 (Fla. 3d DCA 1988)
- Melquiades Blanca v. State, 532 So. 2d 1327 (Fla. 3d DCA 1988)
- Velez v. State, 528 So. 2d 525 (Fla. 2d DCA 1988)