V.A.A., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated delinquent on four counts of cannabis offenses—two counts each of sale and possession from different dates in 1988. The court held that the trial court erred by imposing separate convictions and sentences for both sale and possession of the same quantity of drugs on the same date, as the lesser offense (possession) is subsumed within the greater offense (sale) under Florida's amended sentencing statute.
The court held that imposing separate convictions and sentences for both sale and possession of the same quantity of contraband on the same date violates Florida law, as the crime of possession is a lesser offense whose elements are subsumed within the greater offense of sale. The adjudication for the two sale counts was affirmed, but the adjudication for the two possession counts was reversed.
[1] Separate convictions and sentences for sale and possession of the same quantity of contraband are prohibited when the statutory elements of possession are subsumed by the…
[2] For offenses committed after the effective date of section 775.021, Florida Statutes (1988), separate convictions and sentences for each criminal offense are mandated unl…
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Join FLexlaw to unlock all legal intelligence“Using that analysis we find that it was error for the trial court to sentence the appellant doubly on these two counts.”
Establishes that double sentencing for sale and possession of the same contraband is error under the applicable legal standard.
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Join FLexlaw to unlock all legal intelligenceV.A.A., a juvenile, was charged with two counts of sale and possession of cannabis on June 16, 1988, and two counts of sale and possession of a differ…
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PER CURIAM.
The simple issue raised in this appeal is whether the trial court erred in adjudicating the appellant delinquent and sentencing him on four counts: two counts charging sale and possession of one quantity of cannabis on June 16, 1988, and two counts charging sale and possession of a different quantity of cannabis on July 5, 1988. We must deal with the earlier crimes under a Carawan v. State, 515 So. 2d 161 (Fla.1987), analysis. Using that analysis we find that it was error for the trial court to sentence the appellant doubly on these two counts. Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved sub nom, State v. Smith, 547 So. 2d 613 (Fla.1989) (also denying retroactive application of the relevant statute as amended).
We turn now to the July 5, 1988, crimes. Because they were committed after the effective date of section 775.021, Florida Statutes (1988), the statute, as amended, applies to them. Smith, 547 So. 2d at 617. In its amended version, the legislature has clarified its intent by mandating separate convictions and sentences for each criminal offense committed in one criminal episode unless the crimes fit into one of three enumerated exceptions outlined in section 775.021(4)(b). The exception contained in subsection (4)(b)(3) is implicated under the facts of the case before us:
(4)(b)(3). Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
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 by the appellant on July 5, 1988, do fit into this third category. Thus, separate convictions and 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 convictions and punishments. Our reading of Smith does not lead to such a conclusion; moreover, because of the pre-amendment date of the crimes in Smith (i.e., Gordon) and the crimes in Burton, the supreme court has not had occasion to apply the amended statute. The instant case, however, does present the necessary factual events for applying the amended statute. Accordingly, we certify the following question to the supreme court as one of great public importance:
WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND 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?
The adjudication of delinquency for the two counts of sale is affirmed; the adjudication of delinquency for the two possession counts is reversed. The order of disposition is reversed and remanded to the trial court for redisposition in accordance with this opinion.
DANAHY, A.C.J., and LEHAN and HALL, JJ., concur.
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Cited By (27 total)
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State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)…with this opinion. It is so ordered. SHAW, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur. BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs. . The district court previously certified this same question in V.A.A. v. State, 561 So. 2d 314, 315 (Fla. 2d DCA 1990), approved in part, quashed in part, 577 So. 2d 941 (Fla.1991), in which the text of the certified question appears. . We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. . Section 775.02…
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Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990)…ourt did not withhold its consideration of the effect of the amendment on any particular criminal charges [*1239] until it had before it a case to which the amendment was applicable. This is such a case. Cases directly in point are V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990) and State v. McCloud, 15 F.L.W. D723, 1990 WL 27954 (Fla. 2d DCA Mar. 14, 1990), in which the Second District relying on its decision in Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved sub now. State v. Smith, 547 So.…1 / 2
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State v. V.A.A., 577 So. 2d 941 (Fla. 1991)…PER CURIAM. We granted review of V.A.A. v. State, 561 So. 2d 314 (Fla.2d DCA 1990), to answer the following certified question of great public importance: When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband a…
Previewing 3 of 27 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)
- Serpa v. State, 555 So. 2d 1210 (Fla. 1989)
- State v. Burton, 555 So. 2d 1210 (Fla. 1989)