STATE OF FLORIDA, APPELLANT,
v.
ANTHONY MCCLOUD, APPELLEE
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Florida appeals the dismissal of cocaine possession charges where the defendant was charged with both sale and possession of cocaine from a single transaction. The court affirms the dismissal, holding that dual convictions for sale and possession based on one act violate Florida's statutory prohibition on multiple punishments for crimes with subsumed elements.
The court affirms the dismissal of the possession charges. Under Florida Statute section 775.021(4)(b), dual convictions and sentences are prohibited when crimes fit into enumerated categories, including when one crime has subsumed elements of another. Sale and possession of cocaine from a single transaction constitute crimes with subsumed elements, making dual convictions improper.
[1] A conviction and sentence for both sale and possession of a controlled substance arising from a single transaction may constitute a double jeopardy violation.
[2] Under Florida law, dual convictions and sentences for offenses based on one act are permitted after the effective date of chapter 88-131, section 7, Laws of Florida, unle…
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Join FLexlaw to unlock all legal intelligence“McCloud agreed to plead guilty to the sale charges but contended that conviction and sentence for the possession charges would constitute a double jeopardy violation.”
Establishes the defendant's legal theory challenging dual convictions
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Join FLexlaw to unlock all legal intelligenceAnthony McCloud was charged in two separate informations with one count each of sale and possession of cocaine. Each information involved a single tra…
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PER CURIAM.
The state appeals the dismissal of drug charges.
Appellee Anthony McCloud was charged in two separate informations with one count each of sale and possession of cocaine. It is undisputed that each information involves a single transaction and a single quantum of cocaine. McCloud agreed to plead guilty to the sale charges but contended that conviction and sentence for the possession charges would constitute a double jeopardy violation. Carawan v. State, 515 So. 2d 161 (Fla.1987); Dukes v. State, 528 So. 2d 531 (Fla. 2d DCA 1988). Over objection the trial court dismissed the possession charges.
We' affirm the dismissal with respect to Circuit Court Case No. 89-01185, wherein the offenses were alleged to have taken place June 8, 1988. Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved sub nom., State v. Smith, 547 So. 2d 613 (Fla.1989). We also affirm the dismissal of the possession charge in Circuit Court Case No. 88-16326 for offenses occurring on August 1, 1988, after the effective date of chapter 88-131, section 7, Laws of Florida. The statute in its amended version permits dual convictions and sentences for offenses based on one act unless the crimes fit into one of the three enumerated categories of section 775.021(4)(b). In Gordon, we discussed the elements of the crimes of sale and possession with intent to sell and the supreme court affirmed in Smith. Under that analysis, we find the crimes committed on August 1, 1988, do fit into the category of “subsumed elements,” the third category of section 775.021(4)(b). Dual convictions would have been improper under the facts here, and the trial court also correctly dismissed the possession charge in Case No. 86-16326.
We have recently directly addressed the effect of the amended statute on sale and possession crimes in V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990), and certified a question to the supreme court. The instant case presents the same concern with the effect of the dicta in State v. Burton, 555 So. 2d 1210 (Fla.1989), which prompted the certified question. Accordingly, we again certify the same question posed in V.A.A. as being one of great public importance.
Affirmed.
CAMPBELL, C.J., and RYDER and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)…PER CURIAM. We have for review State v. McCloud, 559 So. 2d 1305 (Fla. 2d DCA 1990), in which the district court certified the following as being a question of great public importance:1 When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of t…
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Davis v. State, 581 So. 2d 893 (Fla. 1991)…RABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? 561 So. 2d at 315. The district court certified the same question in State v. McCloud, 559 So. 2d 1305, 1306 (Fla. 2d DCA 1990). Based on our recent decisions in State v. V.A.A., 577 So. 2d 941 (Fla.1991), and State v. McCloud, 577 So. 2d 939 (Fla.1991), we approve the decision of the Fifth District Court of Appeal in this case. In McCloud we reject…
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Tonnie Torrell Holmes v. State, 575 So. 2d 332 (Fla. 5th DCA 1991)…So. 2d 1117 (Fla. 2d DCA 1990); Dukes v. State, 569 So. 2d 1380 (Fla. 2d DCA 1990); Gibson v. State, 565 So. 2d 402 (Fla. 1st DCA 1990), cause dism., 570 So. 2d 1306 (Fla. 1990); V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990); State v. McCloud, 559 So. 2d 1305 (Fla. 2d DCA 1990); Crisel v. State, 561 So. 2d 453 (Fla. 2d DCA 1990).…
Previewing 3 of 5 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)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990)
- Serpa v. State, 555 So. 2d 1210 (Fla. 1989)
- State v. Burton, 555 So. 2d 1210 (Fla. 1989)
- Dukes v. State, 528 So. 2d 531 (Fla. 2d DCA 1988)