KELVIN EUGENE JELKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted of both sale and possession of the same illegal drugs when the crime occurred before the effective date of a statute that would otherwise allow such dual convictions.
Appellant was convicted of sale and possession of illegal drugs. The drugs involved in both offenses were the same.…
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DAUKSCH, Judge.
This is an appeal from convictions for sale and possession of illegal drugs. Because it was the same drugs which were both sold and possessed it is appellant’s contention that his constitutional double jeopardy rights are violated by convicting him of two crimes for one act.
State v. Smith, 547 So. 2d 613 (Fla.1989) answers the question in this case. That case holds that Carawan v. State, 515 So. 2d 161 (Fla.1987) and Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988) apply to this case because the crime occurred before the effective date of Chapter 88-131, Laws of Florida. Gordon says one cannot be convicted of both sale and possession for a single transaction and cites the Carawan case and its single evil rationale.
Smith explains that the statute overrides Carawan but Smith holds that the legislature’s announcement of its intent in the statute will not be applied “retroactively.” Thus, this appellant cannot be convicted of both sale and possession because his crimes were committed in October, 1987. The possession conviction is reversed and this cause remanded for resentencing. See State v. Barton, 523 So. 2d 152 (Fla.1988). The sale conviction is affirmed.
AFFIRMED in part; REVERSED in part; REMANDED.
ORFINGER and COBB, JJ., concur.
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Harrison Porterfield v. State, 553 So. 2d 186 (Fla. 1st DCA 1989)…of the same cocaine under § 893.13(l)(a), Fla.Stat. (1985). The decision in this case does conflict with the decisions in Choctaw v. State, 547 So. 2d 726 (Fla. 2d DCA, 1989); Kocol v. State, 546 So. 2d 1159 (Fla. 5th DCA, 1989); and Jelks v. State, 546 So. 2d 783 (Fla. 5th DCA, 1989). In Choctaw, Kocol and Jelks, the courts found a double jeopardy violation although the offenses were set forth in separate subsections of the same statute. This case does not conflict with Wheeler v. State, 549 So. 2d 687 (Fla.…
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McKINNEY v. State, 553 So. 2d 796 (Fla. 5th DCA 1989)…rest on the single transaction involving one rock of cocaine, we must vacate the conviction for the lesser degree crime, the possession count.1 Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved, 547 So. 2d 613 (Fla.1989); Jelks v. State, 546 So. 2d 783 (Fla. 5th DCA 1989). Accordingly, McKinney’s conviction and sentence for the possession count is vacated and this cause is remanded for sentencing on the sale count. REVERSED in part; REMANDED. DAUKSCH and COWART, JJ., concur. . Possession is…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- State v. Barton, 523 So. 2d 152 (Fla. 1988)