MICHAEL WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that prosecuting and sentencing a defendant for both delivery and possession of the same cocaine constitutes a double jeopardy violation.
Appellant was convicted of selling cocaine twice, with charges for both delivery and possession for each transaction. The state argued separate punish…
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PER CURIAM.
Appellant Michael Wright was convicted of twice selling cocaine to an undercover police officer. With respect to each transaction the state had charged Wright with both delivery1 and possession2 of a controlled substance. On appeal Wright maintains that this constitutes a double jeopardy violation. See Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988). We agree and reverse with directions to vacate the judgments and sentences for possession.
The state does not dispute that Wright “was only prosecuted for that cocaine which was actually exchanged.” Nevertheless, they suggest that multiple punishments are appropriate because the cocaine involved consisted of several separate “rocks” packaged together. Cited in support of this thesis is Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989). However, although Newsome also involved several discrete pieces of rock cocaine, it did not address the precise Question posed by the present case.
Newsome sold to a police informant only one of several “rocks” in his possession, keeping the rest. This continuing control over the remaining cocaine, and not the fact that the drug happened to be in its “rock” form, justified a separate charge of possession. The legislature, in establishing schedules of controlled substances and in creating the far more serious offense of trafficking, thus far has classified unlawful drugs primarily on the basis of chemical composition or the total weight of the “package.”
Reversed.
SCHEB, A.C.J., and LEHAN and HALL, JJ., concur. . § 893.13(l)(a)(l), Fla.Stat. (1987).
. § 893.13(1)(f), Fla.Stat. (1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. State, 558 So. 2d 197 (Fla. 2d DCA 1990)…rome Davis sold rock cocaine to a paid police informant. With respect to each transaction appellant was convicted of and sentenced for both sale of cocaine and possession of cocaine with intent to sell. This was improper. See, e.g., Wright v. State, 557 So. 2d 906 (Fla. 2d DCA 1990). Accordingly, we remand this case to the trial court with directions to vacate the judgments and sentences for possession with intent to sell. The judgments and sentences for sale of cocaine are affirmed. HALL, A.C.J., and PATTE…
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Robinson v. State, 558 So. 2d 196 (Fla. 2d DCA 1990)…rgues, and the state concedes, that the trial court erred in convicting and sentencing appellant for both sale of cocaine and possession of cocaine with intent to sell, where the cocaine in question consisted of a single “rock.” See Wright v. State, 557 So. 2d 906 (Fla. 2d DCA 1990). Accordingly, we direct the trial court to vacate the judgment and sentence for possession with intent to sell. HALL, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.…
Authorities Cited
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989)