JOE LEWIS HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A defendant cannot be convicted of both sale and possession of the same cocaine when the offenses occurred before July 1, 1988.
Appellant was convicted of sale of cocaine and possession of the same cocaine with intent to sell and deliver. The crimes occurred in August and Septe…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Double Jeopardy (Implied) cases and more on FLexlaw
ORFINGER, Judge.
Appellant was charged with and convicted of four separate counts of sale of cocaine, and each of these counts was paired with another count of possession of cocaine (the same cocaine as in the paired charge of sale) with intent to sell and deliver. The crimes were alleged to have been committed in August and September, 1985.
On appeal, appellant contends that he cannot be convicted of both sale of cocaine and possession of the same cocaine with intent to sell and deliver. Because the offenses were committed prior to July 1, 1988, and on authority of the recently decided case of State v. Smith, 547 So. 2d 613 (Fla.1989), we must agree.1
The sale convictions are affirmed. The possession convictions are reversed. Because the elimination of points for the vacated convictions reduces the recommended guidelines sentence, the cause is remanded for resentencing.
We also vacate the award of costs as a condition of probation which was entered without notice to the defendant and an opportunity to be heard, see Harriel v. State, 520 So. 2d 271 (Fla.1988); Mays v. State, 519 So. 2d 618 (Fla.1988). On remand, the court may reconsider imposing costs after proper notice and hearing.
AFFIRMED in part, REVERSED in part and REMANDED.
DANIEL, C.J., and COBB, J., concur. . As rioted in Smith, the legislative amendment to section 775.021(4), Florida Statutes (Supp. 1988) which became effective July 1, 1988 would alter the result here, but the amendment is not to be given retroactive effect, and thus does not apply to crimes committed prior to the effective date of the statute. Instead, Carawan v. State, 515 So. 2d 161 (Fla.1987) applies, and requires reversal of the possession charges.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
LEE v. State, 562 So. 2d 865 (Fla. 5th DCA 1990)…tate v. Williams, 520 So. 2d 276 (Fla.1988). We also vacate the imposition of costs which were assessed without notice and opportunity to object. Harriel v. State, 520 So. 2d 271 (Fla.1988); Mays v. State, 519 So. 2d 618 (Fla.1988); Holmes v. State, 547 So. 2d 695 (Fla. 5th DCA 1989). On remand, the court may reconsider imposing costs after proper notice and hearing. AFFIRMED in part; VACATED in part and REMANDED. DAUKSCH and HARRIS, JJ., concur. . This $500 represents the cash allegedly taken from the…
-
Ward v. State, 554 So. 2d 29 (Fla. 5th DCA 1989)…PER CURIAM. Appellant alleges and appellee concedes the court erred in assessing costs without notice or an opportunity to be heard. This is error. Wood v. State, 544 So. 2d 1004 (Fla.1989). See also Holmes v. State, 547 So. 2d 695 (Fla. 5th DCA 1989); Norden v. State, 548 So. 2d 303 (Fla. 5th DCA 1989); Clarke v. State, 547 So. 2d 1298 (Fla. 5th DCA 1989); Donohue v. State, 547 So. 2d 1047 (Fla. 5th DCA 1989). The conviction and sentence are affirmed; the costs order is rev…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Harriel v. State, 520 So. 2d 271 (Fla. 1988)