CHARLES K. SINGLETON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Singleton appealed his convictions for both sale and possession of cocaine on double jeopardy grounds. The court affirmed the sale conviction but set aside the possession conviction as a violation of double jeopardy, struck costs imposed without notice, and remanded for correction of the sentence regarding time served.
The court held that convicting Singleton of both sale and possession of the same cocaine violated double jeopardy; accordingly, the possession conviction (the lesser offense) was set aside while the sale conviction was affirmed. The court also held that costs imposed without prior notice and hearing must be struck.
[1] A violation of double jeopardy is fundamental error and will be considered by an appellate court even if the defendant fails to object in the trial court.
[2] A defendant cannot be convicted of both sale and possession of the same contraband when the possession is incidental to the sale.
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Join FLexlaw to unlock all legal intelligence“A violation of double jeopardy is fundamental error and will be considered by the appellate court even if the defendant fails to object in the trial court.”
Establishes that double jeopardy claims are reviewable as fundamental error despite lack of trial court objection.
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Join FLexlaw to unlock all legal intelligenceOn August 18, 1986, Singleton directly sold two pieces of rock cocaine to undercover officers. There was no evidence that Singleton possessed more tha…
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PER CURIAM.
Charles Singleton appeals his judgment and sentences entered upon his convictions for sale and possession of cocaine. We affirm the conviction for sale of cocaine, set aside the conviction for possession of cocaine, strike the costs in the judgment, and remand for correction of the sentence.
Singleton challenges his convictions for both sale and possession of cocaine on double jeopardy grounds. The state argues that we are precluded from considering this point, because Singleton failed to raise a double jeopardy argument with the trial court. We disagree with the state’s position on this issue. A violation of double jeopardy is fundamental error and will be considered by the appellate court even if the defendant fails to object in the trial court. State v. Johnson, 483 So. 2d 420 (Fla.1986); Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988).
On August 18, 1986, Singleton directly sold two pieces of rock cocaine to undercover officers. There was no evidence that Singleton at any time had more than those two rocks. Using the analysis set forth in Carawan v. State, 515 So. 2d 161 (Fla.1987)1 and its progeny,2 it was a violation of double jeopardy for Singleton to be convicted of sale and possession of the same cocaine. See Williams v. State, 547 So. 2d 710 (Fla. 2d DCA 1989); Dukes v. State, 528 So. 2d 531 (Fla. 2d DCA 1988). Accordingly, Singleton’s conviction for possession of cocaine, the lesser crime, should be set aside. See State v. Barton, 523 So. 2d 152 (Fla.1988).3
Next, we strike the costs imposed by the trial court because they were imposed without prior notice and hearing. See Wood v. State, 544 So. 2d 1004 (Fla.1989); Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1974).
Last, the parties agree that the sentence does not conform with the trial judge’s oral pronouncement regarding the credit for time served and that the oral pronouncement is correct. On remand, the trial court should correct the written sentence as to credit for time served. See Cobb v. State, 554 So. 2d 666 (Fla. 2d DCA 1990).4
We affirm the conviction for sale of cocaine; we set aside the conviction for possession of cocaine. We strike the assessment of costs without prejudice to the state to seek reassessment of costs after proper notice and hearing. We remand this case to the trial court to correct the sentence as to time served. The defendant need not be present.
SCHOONOVER, A.C.J., and LEHAN, J., concur. PARKER, J., concurs specially with opinion.
.The Carawan analysis has been superseded by section 775.021(4), Florida Statute (Supp.1988) for offenses committed after June 30, 1988. State v. Smith, 547 So. 2d 613, 615-17 (Fla.1989). Singleton committed these crimes on August 18, 1986; therefore, the analysis set forth in Cara-wan is the appropriate analysis for this case.
. See, e.g., Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved sub nom. State v. Smith, 547 So. 2d 613 (Fla.1989).
. The removal from consideration of the possession offense when recalculating the guidelines' scoresheet does not alter the recommended guidelines sentence; therefore, it is unnecessary for the trial judge to resentence the defendant.
. Although Singleton raised an additional point on appeal, we have considered it and have determined that it is without merit.
PARKER, Judge,
Specially Concurring.
I concur with the majority because of Carawan and Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved sub nom. State v. Smith, 547 So. 2d 613 (Fla.1989). However, I continue to question this court’s ability to decide issues of double jeopardy under subsection 775.021(4), Florida Statutes (1985),5 by looking to the proof offered at a defendant’s trial. See Crisel v. State, 561 So. 2d 453 (Fla. 2d DCA 1990) (Parker, J., specially concurring).
. That subsection provides:
775.021 Rules of construction.—
(4) Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
§ 775.021, Fla.Stat. (1985) (emphasis added).
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Watson Grene v. State, 702 So. 2d 510 (Fla. 3d DCA 1996)…convictions as fundamental error and allow the defendant to raise the double jeopardy issue on appeal, even though there was no objection in the trial court. In so holding we align ourselves with the Second District decisions in Singleton v. State, 561 So. 2d 1296, 1297 [*512] (Fla.2d DCA 1990); Diaz v. State, 527 So. 2d 300, 302 n. 4 (Fla.2d DCA 1988), and Park v. State, 528 So. 2d 524, 525 (Fla.2d DCA 1988). It also appears to us that the rule we now adopt is more logical than our previous rule. The United…
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Nestor Rios v. State, 19 So. 3d 1004 (Fla. 2d DCA 2009)…mental error, it may be raised for the first time on appeal.” Eichelberger v. State, 949 So. 2d 358, 359 (Fla. 2d DCA 2007) (citing Marinelli v. State, 706 So. 2d 1374, 1375 n. 1 (Fla. 2d DCA 1998); see also Gisi 848 So. 2d 1278; Singleton v. State, 561 So. 2d 1296 (Fla. 2d DCA 1990)) (holding that the double jeopardy violation arising out of Singleton’s convictions for sale and possession of the same two pieces of rock cocaine constituted fundamental error that could be raised for the first time on appeal). A…
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Debby J. Giordano v. State, 32 So. 3d 96 (Fla. 2d DCA 2009)…red in denying Giordano’s motion as to her first point, and we agree. Accordingly, on remand, the trial court is directed to issue a written sentence reflecting its oral sentence of time served on the criminal contempt count. See Singleton v. State, 561 So. 2d 1296, 1298 (Fla. 2d DCA 1990) (remanding matter to trial court with directions to correct written sentence to conform with court’s oral pronouncement). However, as to Giordano’s second point on appeal, the parties dispute the proper classification of th…
Authorities Cited (13 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Wood v. State, 544 So. 2d 1004 (Fla. 1989)
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- State v. Barton, 523 So. 2d 152 (Fla. 1988)
- Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988)
- Dukes v. State, 528 So. 2d 531 (Fla. 2d DCA 1988)