FREDERICK KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed trafficking and drug paraphernalia convictions but quashed the possession of cocaine conviction because all charges arose from the same cocaine and the defendant could not be punished for both possession and trafficking of the same drug under Carawan v. State.
A defendant cannot be convicted and sentenced for both trafficking in cocaine and simple possession of cocaine when both charges arise from the same quantum of cocaine.
[1] A defendant cannot be convicted and sentenced for both trafficking in and simple possession of the same cocaine, and the possession conviction must be quashed under Carawan v. …
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Join FLexlaw to unlock all legal intelligence“all of the crimes charged relate to the same quantum of cocaine in Kelly's possession at the time of his arrest”
Court explaining why the possession conviction must be quashed despite the trafficking conviction
Kelly was arrested with cocaine in his possession and was charged with trafficking in cocaine, possession of cocaine, and possession of drug paraphern…
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SHARP, Judge.
Kelly appeals from his convictions and sentences for trafficking in cocaine,1 possession of cocaine,2 and possession of drug paraphernalia.3 He received separate sentences for each crime, a fine, and a sentence of four years imprisonment to be followed by six years probation on the trafficking count, and a four year sentence of imprisonment on the possession of cocaine count — all sentences to run concurrently. We affirm all but the conviction and sentence for possession of cocaine. The record in this case shows that all of the crimes charged relate to the same quantum of cocaine in Kelly’s possession at the time of his arrest. The crimes were committed prior to the amendment of section 775.021(4), Florida Statutes (Supp.1988). Therefore, pursuant to Carawan v. State, 515 So. 2d 161 (Fla.1987) and Garrison v. State, 530 So. 2d 365 (Fla. 5th DCA 1988), the possession of cocaine conviction must be quashed. See State v. Burton, 555 So. 2d 1210 (Fla.1989).
The vacation of the conviction for possession of cocaine does not, however, remove sufficient points from Kelly’s score under the guidelines to drop him into the next lowest bracket, based on his. remaining two convictions. His sentencing bracket remains three and one-half to four and one-half years. Thus, we affirm the convictions, sentences and time given for the trafficking and possession of paraphernalia crimes.
AFFIRMED in part; sentence and conviction for possession of cocaine QUASHED.
COBB and COWART, JJ., concur. . § 893.135(l)(b)l„ Fla.Stat. (1987).
. § 893.147(1), Fla.Stat. (1987).
.§ 893.13(l)(f), Fla.Stat. (1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Serpa v. State, 555 So. 2d 1210 (Fla. 1989)
- State v. Burton, 555 So. 2d 1210 (Fla. 1989)
- Garrison v. State, 530 So. 2d 365 (Fla. 5th DCA 1988)