GERALD GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald Green was convicted of both possession and sale of cocaine arising from a single transaction. The court reversed his conviction for possession, holding that where a defendant sells drugs and simultaneously divests himself of his entire inventory, separate convictions for both sale and possession of the same quantum of drugs violate the rule against multiple convictions for the same conduct.
A defendant cannot be convicted of both possession and sale of cocaine arising from a single transaction where the defendant divests himself of his entire inventory of contraband at the moment of sale. The quantum of drugs comprising one rock and several crumbs is indistinguishable from a single quantum for purposes of criminal liability.
[1] A defendant cannot be convicted and sentenced for both possession and sale of the same quantum of drugs arising from a single criminal act.
[2] Possession and sale of a single quantum of drugs, comprised of one rock and several crumbs, constitutes a single offense.
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Join FLexlaw to unlock all legal intelligence“Clearly, the appellant divested himself of his entire inventory of contraband at the moment of sale.”
Establishes the key principle that simultaneous divestment of entire inventory in a single transaction prevents multiple convictions.
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Join FLexlaw to unlock all legal intelligenceAn undercover police officer testified that Green sold him a single rock of cocaine for twenty dollars. After the sale, Green handed over the containe…
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PER CURIAM.
We reverse, in part, the appellant’s convictions and sentences for possession and sale of the same drugs upon the authority of Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved sub nom, State v. Smith, 547 So. 2d 613 (Fla.1989).
In this case we focus on the quantum of drugs for which the appellant was convicted of both sale and possession in violation of section 893.13, Florida Statutes (1985), arising out of a single criminal act. The state contends we should affirm because there were two quanta of cocaine; thus the appellant was properly convicted and sentenced for separate crimes. The evidence, however, is otherwise.
At trial, the undercover police officer who had posed as the buyer testified that the appellant sold him a single rock of cocaine for twenty dollars; thereupon the appellant turned over the container which had housed that rock to deposit the remaining cocaine crumbs from the container into the buyer’s hand. Contrary to the state’s contentions, under these circumstances we find that the quantum of drugs here, comprised of one rock and several crumbs, is indistinguishable from a single quantum of cocaine comprised of several rocks. Blanca v. State, 532 So. 2d 1327 (Fla. 3d DCA 1988) (quantum sold contained two rocks; no other cocaine possessed); compare Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989) (one rock out of ten displayed was sold to undercover policeman); Leeks v. State, 529 So. 2d 787 (Fla. 2d DCA 1988) (one rock sold but three kept back); and Julian v. State, 545 So. 2d 347 (Fla. 1st DCA 1989) (serial acts in possessing large trafficking quantity in motel room and subsequently taking some of that quantity and selling it to undercover officer). Clearly, the appellant divested himself of his entire inventory of contraband at the moment of sale. See Gordon, 528 So. 2d at 911, n. 2.
We also find no merit in the state’s argument that more than one transaction or more than one act took place here.
We affirm the appellant’s conviction for sale. We reverse his conviction for possession and remand with instructions to resen-tence the appellant.
CAMPBELL, C.J., and DANAHY and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989)
- Garcia v. State, 532 So. 2d 1327 (Fla. 3d DCA 1988)
- Melquiades Blanca v. State, 532 So. 2d 1327 (Fla. 3d DCA 1988)
- Nacius Julian v. State, 545 So. 2d 347 (Fla. 1st DCA 1989)
- Leeks v. State, 529 So. 2d 787 (Fla. 2d DCA 1988)