STATE OF FLORIDA, PETITIONER,
v.
JIMMIE DURAN HATTEN, RESPONDENT
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BARKETT, Justice.
We have for review Hatten v. State, 542 So. 2d 1061 (Fla. 2d DCA 1989), due to asserted conflict with Smith v. State, 430 So. 2d 448 (Fla.1983). We grant review pursuant to article V, section 3(b)(3) of the Florida Constitution, and approve the decision of the district court for the reasons stated in State v. Burton, 555 So. 2d 1210 (Fla.1989).
It is so ordered.
OVERTON, McDonald, GRIMES and KOGAN, JJ., concur. SHAW, J., dissents with an opinion, in which EHRLICH, C.J., concurs.
[*1173] SHAW, Justice,
dissenting.
In State v. Smith, 547 So. 2d 613 (Fla.1989), we indicated that for crimes committed before July 1, 1988, the rule of lenity articulated in Carawan v. State, 515 So. 2d 161 (Fla.1987), was applicable and prohibited the state from imposing multiple punishments for sale of drugs and possession with intent to sell the same drugs. In State v. Burton, 555 So. 2d 1210 (Fla.1989), we relied on Smith and held that convictions for both delivery and possession of the same drugs fail under Carawan. In the instant opinion, we rely on Burton and affirm the district court’s decision setting aside dual convictions for sale and possession of a single quantity of drugs.
In my opinion, Smith does not provide a basis for these later rulings. Possession of drugs is proscribed by more than one section of the Florida Statutes (1985).
Section 893.13(1)(a) describes “possession with intent to sell”; section 893.13(1)(e), on the other hand, defines “simple possession,” an entirely different offense and one not dealt with in Smith. The offenses in Smith were sale and possession with intent to sell. Prosecution of these two offenses failed under Carawan because both addressed the same basic evil — the facilitation of the transfer of drugs. See Wheeler v. State, 549 So. 2d 687, 692 (Fla. 1st DCA 1989) (Nimmons, J., concurring).
The offenses at issue here are sale and simple possession. Prosecution of these two separate crimes arising from the same act passes muster even under Carawan because they contain different statutory elements and address different evils of legitimate legislative concern — one pertains to the possession of drugs by the individual without any particular intent and the other pertains to the sale or delivery of drugs. See Porterfield v. State, 553 So. 2d 186 (Fla. 1st DCA 1989); cf. Smith v. State, 430 So. 2d 448 (Fla.1983).
The same analysis applies to Burton, where the offenses were delivery and simple possession. I would quash the DCA decision, order Hatten’s conviction and sentence for possession reinstated, and distinguish Burton to the extent that it can be read as applying to simple possession under section 893.13(l)(e).
EHRLICH, C.J., concurs.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Arnold v. State, 578 So. 2d 515 (Fla. 4th DCA 1991)…and possession with intent to sell); Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988) (same), approved, Smith. Cf. State v. Burton, 555 So. 2d 1210 (Fla.1989) (cannot have separate convictions for delivery and simple possession); State v. Hatten, 560 So. 2d 1172 (Fla.1990) (cannot have separate convictions for sale and simple possession); Dukes v. State, 528 So. 2d 531 (Fla. 2d DCA 1988) (same). We therefore reverse and remand with instructions to vacate one of the two convictions and its corresponding sen…
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Harrison Porterfield v. State, 567 So. 2d 429 (Fla. 1990)…SHAW, Chief Justice, dissenting. I dissent for the same reason I did in State v. Hatten, 560 So. 2d 1172 (Fla.1990) (Shaw, J., dissenting).…
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ST. Clair v. State, 575 So. 2d 243 (Fla. 2d DCA 1991)…ssue of Gordon are the supreme court cases of 83-Smith and Daophin, and several post-89-Smith supreme court cases. These most recent cases are State v. Parker, 551 So. 2d 1209 (Fla.1989), State v. Burton, 555 So. 2d 1210 (Fla.1989), State v. Hatten, 560 So. 2d 1172 (Fla.1990), and Porterfield v. State, 567 So. 2d 429 (Fla.1990). These cases provide at least a strong inference that the analysis of Gordon was approved by the supreme court in 89-Smith when it affirmed the result in Gordon and answered the certifi…
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)
- Wheeler v. State, 549 So. 2d 687 (Fla. 1st DCA 1989)
- Smith v. State, 430 So. 2d 448 (Fla. 1983)
- Serpa v. State, 555 So. 2d 1210 (Fla. 1989)
- State v. Burton, 555 So. 2d 1210 (Fla. 1989)
- Hatten v. State, 542 So. 2d 1061 (Fla. 2d DCA 1989)
- Harrison Porterfield v. State, 553 So. 2d 186 (Fla. 1st DCA 1989)