GEORGE H. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Davis was convicted of both sale/delivery and possession of a controlled substance in separate counts. The court reversed the possession conviction as violating double jeopardy principles and vacated the departure sentence because the trial court's grounds for departing from guideline sentencing were invalid.
The possession conviction (Count II) is reversed as a violation of double jeopardy. The departure sentence is vacated because three of the four grounds were invalid: habitual seller status, probation violations, and the timing of the offense did not meet required standards. The case is remanded for resentencing within the recommended guideline range.
[1] A conviction for both sale or delivery of a controlled substance and possession of the same controlled substance violates constitutional double jeopardy rights.
[2] A conviction for possession of a controlled substance under section 893.13(1)(f), Florida Statutes, may be reversed if it violates double jeopardy principles.
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Join FLexlaw to unlock all legal intelligence“The defendant's conviction for the offense of sale or delivery of a controlled substance and for the separate offense of possession of the same controlled substance violated his constitutional double jeopardy rights.”
Establishes the core holding that dual convictions for sale/delivery and possession of the same substance violate double jeopardy
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Join FLexlaw to unlock all legal intelligenceDavis was charged with and convicted of both sale or delivery of a controlled substance (Count I) and possession of the same controlled substance (Cou…
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PER CURIAM.
The defendant’s conviction for the offense of sale or delivery of a controlled substance1 and for the separate offense of possession2 of the same controlled substance violated his constitutional double jeopardy rights. See Carawan v. State, 515 So. 2d 161 (Fla.1987).3 Therefore the conviction of possession under section 893.-13(l)(f), Florida Statutes, charged in Count II of Case No. 88-1794 is reversed. The defendant’s guideline scoresheet scored the reversed possession conviction. The reversal of this possession conviction results in a two point downward point change but does not change the recommended guideline sentencing range.
However the trial court departed from the recommended guideline sentence; therefore we must consider the validity of the departure sentence. Four reasons are given for imposing the departure sentence. One ground, that the defendant was an habitual seller of cocaine, was conceded by the State on appeal to be an invalid ground for departure: see Whitehead v. State, 498 So. 2d 863 (Fla.1986); two grounds were factors relating to violation of probation and are invalid under Lambert v. State, 545 So. 2d 838 (Fla.1989); the remaining reason, relating to the timing of the offense, does not meet the standard of temporal proximity required by State v. Jones, 530 So. 2d 53 (Fla.1988).
Therefore the departure sentence is vacated and the cause remanded for resentencing within the recommended guideline range. Shull v. Dugger, 515 So. 2d 748 (Fla.1987); Branton v. State, 548 So. 2d 882 (Fla. 5th DCA 1989).
REVERSED IN PART; SENTENCE VACATED; and REMANDED.
COWART and GOSHORN, JJ., and HARRIS, Associate Judge, concur. . § 893.13(l)(a)l, Fla.Stat. . § 893.13(l)(f), Fla.Stat. . The offenses involved occurred prior to July 1, 1988, the effective date of Chapter 88-131, § 7, Laws of Florida. See State v. Smith, 547 So. 2d 613 (Fla.1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hamilton v. State, 552 So. 2d 1186 (Fla. 5th DCA 1989)…tence on both convictions because the convictions were predicated upon a single criminal act, the sale of one rock of crack cocaine to an undercover police officer. We agree. See Carawan v. State, 515 So. 2d 161 (Fla.1987).3 See also Davis v. State, 550 So. 2d 1188 (Fla. 5th DCA 1989). Accordingly, we vacate the judgment and sentence imposed on the possession charge. Remand, however, is not necessary because the trial court sentenced Hamilton within the recommended guidelines range and reversal of the possessi…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- Branton v. State, 548 So. 2d 882 (Fla. 5th DCA 1989)