STANLEY DWAYNE COBB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stanley Dwayne Cobb appealed his convictions and sentences for community control violation and three new drug offenses. The court held that Cobb could not be convicted of both sale and possession of the same cocaine in a single criminal act, and that improper sentencing procedures required remand for resentencing.
Cobb's conviction for possession of cocaine on August 6, 1987 must be vacated because he could not be convicted of both sale and possession of the same cocaine in a single criminal act. The case must be remanded for resentencing based on a proper scoresheet that does not reflect the vacated possession conviction.
[1] A defendant cannot be convicted and sentenced for both the sale and possession of the same contraband when the sale and possession constitute a single criminal act.
[2] A conviction for possession of cocaine must be vacated when the evidence indicates the possession was incidental to the sale of the same cocaine.
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Join FLexlaw to unlock all legal intelligence“the appellant could not be convicted and sentenced for both sale and possession of the same cocaine”
Establishes the core holding that a single criminal act of selling cocaine cannot support dual convictions for both sale and possession
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Join FLexlaw to unlock all legal intelligenceCobb was originally sentenced to eighteen months community control and eighteen months probation for prior cocaine charges. While on community control…
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SCHOONOVER, Judge.
The appellant, Stanley Dwayne Cobb, challenges the judgments and sentences imposed upon him after he pled guilty to violating the terms and conditions of his community control and to three new offenses. We find that the appellant was improperly convicted of one count of possession of cocaine and that we must remand for resentencing.
The appellant was originally sentenced, pursuant to a guilty plea, to serve eighteen months on community control to be followed by eighteen months of probation for five charges of sale of cocaine and five charges of possession of cocaine. The state subsequently charged the appellant with violating his community control and filed a new information charging him with sale of cocaine, possession of cocaine, and obstructing an officer without violence. The new offenses were alleged to have been committed on August 6, 1987. The appellant pled guilty to violating the terms of his community control and to the new charges. The trial court sentenced the appellant to serve twelve years in prison on each of the sale charges and five years in prison on each of the possession charges. The appellant was sentenced to time served on the obstructing charge. This timely appeal followed.
The appellant contends that the trial court erred by adjudicating him guilty of both sale and possession of cocaine in connection with the August 6, 1987, incident. We agree. The complaint/arrest affidavit executed by the arresting officer in connection with the incident indicates that the appellant committed a single criminal act, i.e., the sale of the same cocaine he possessed. This affidavit was the basis for the subsequent information filed by the state. Accordingly, the appellant could not be convicted and sentenced for both sale and possession of the same cocaine. Carawan v. State, 515 So. 2d 161 (Fla.1987); Gordon v. State, 528 So. 2d 910 (Fla.2d DCA 1988), approved sub nom. State v. Smith, 547 So. 2d 613 (Fla.1989). Therefore, the appellant’s conviction and sentence for possession of cocaine on August 6, 1987, must be vacated.
The appellant also contends that he was improperly sentenced on all charges because an updated scoresheet was not prepared at the time he was sentenced. The state agrees that the record does not reflect the presence of a proper scoresheet. We, therefore, reverse and remand for re-sentencing based upon a proper scoresheet which does not reflect a conviction for possession of cocaine on August 6, 1987.
Affirmed in part, reversed in part, and remanded with instructions.
CAMPBELL, C.J., and ALTENBERND, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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)