STATE OF FLORIDA, PETITIONER,
v.
BOBBY JOE BURTON, RESPONDENT
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The Florida Supreme Court held that a defendant cannot be convicted of both delivery and possession with intent to sell of the same cocaine based on a pre-July 1, 1988 incident, because the statutory amendment allowing separate convictions for these offenses does not apply retroactively.
The court affirmed the district court's reversal because chapter 88-131 does not apply retroactively. Although the legislature intended delivery and possession with intent to sell to be separate offenses subject to separate convictions and punishments under the new statute, the law cannot be applied to incidents occurring before its effective date.
[1] A defendant cannot be convicted of both delivery and possession of the same controlled substance without violating double jeopardy protections.
[2] The sale or delivery of a controlled substance and possession of that substance with intent to sell are separate offenses subject to separate convictions and punishments.
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Join FLexlaw to unlock all legal intelligence“the defendant cannot be convicted of both delivery and possession of the same cocaine without violating his double jeopardy rights under the federal and state constitutions”
States the holding of the district court decision being reviewed by the Supreme Court
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Join FLexlaw to unlock all legal intelligenceBobby Joe Burton was convicted of both delivery and possession of cocaine stemming from a criminal incident occurring on January 2, 1987. The District…
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PER CURIAM.
We have for review Burton v. State, 541 So. 2d 1203 (Fla.2d DCA 1988), which held that the defendant cannot be convicted of both delivery and possession of the same cocaine without violating his double jeopardy rights under the federal and state constitutions. We take jurisdiction to resolve alleged conflict with Smith v. State, 430 So. 2d 448 (Fla.1983). Art. V, § 3(b)(3), Fla.Const. We held, in State v. Smith, 547 So. 2d 613 (Fla.1989), which applied chapter 88-131, section 7, Laws of Florida,1 that the legislature intended the following to be separate offenses subject to separate convictions and separate punishments: the sale or delivery of a controlled substance; and possession of that substance with intent to sell. We also held that although chapter 88-131 overrode Carawan v. State, 515 So. 2d 161 (Fla.1987), nevertheless, it is not to be applied retroactively.
Because the convictions at issue here are based on an incident which occurred prior to July 1, 1988,2 the effective date of chapter 88-131, we approve the result reached by the district court.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, shaw, barkett, GRIMES and KOGAN, JJ., concur. . The incident upon which respondent's convictions are based occurred on January 2, 1987.
.This section amended subsection 775.021(4), Florida Statutes, to provide:
(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are: .
1. Offenses which require identical elements of proof.
2. Offenses which are dégrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
§ 775.021(4), Fla.Stat. (Supp.1988).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)…delivery of a controlled substance and possession of that substance constitute separate offenses subject to separate convictions and separate punishments. Ch. 88-131, § 7, Laws of Fla. (amending § 775.021(4), Fla.Stat. (1987)); see State v. Burton, 555 So. 2d 1210 (Fla.1989). However, the offenses at issue in Smith occurred prior to the July 1, 1988 effective date of chapter 88-131, and we declined to apply chapter 88-131 retroactively, finding the case was controlled by Carawan v. State, 515 So. 2d at 161 (c…
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V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990)…sentences for sale and possession of the same quantity of contraband are prohibited by the legislature. We believe our conclusion correctly applies the statute as amended. We are concerned, however, that dicta in a subsequent case, State v. Burton, 555 So. 2d 1210 (Fla.1989) (which only dealt with these crimes occurring before July 1, 1988), may cause some doubt. Burton notes that Smith held that the amended statute makes sale and possession of the same substance separate offenses subject to separate convicti…
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Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990)…r possession was an “element” under the facts of the case before us (as apparently did the court in Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)) but whether it is a necessary element under the statute. This is consistent with State v. Burton, 555 So. 2d 1210 (Fla.1989) in which the Florida Supreme Court indicates approval of the legislative intent to treat sale and possession of the same substance as separate offenses subject to separate convictions and punishment. We next must look to the information…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Smith v. State, 430 So. 2d 448 (Fla. 1983)
- Burton v. State, 541 So. 2d 1203 (Fla. 2d DCA 1988)