ADOLF ALVIN MINCEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Adolf Alvin Mincey was convicted of four drug offenses—two counts of possession of cocaine with intent to deliver and two counts of delivery of cocaine. The court reversed in part, holding that he could not be convicted of both delivery and possession with intent to deliver for the same quantity of cocaine, and that the sentencing departure was improper.
The appellant was improperly convicted and sentenced for both delivery and possession with intent to deliver the same cocaine because the two counts in each information were predicated on a single underlying act. Additionally, the trial court improperly departed from the sentencing guidelines because the reasons given were either invalid or unsupported by the record.
[1] A defendant cannot be convicted and sentenced for both possession with intent to deliver and delivery of the same quantity of cocaine when the offenses are predicated on…
[2] A trial court improperly departs from sentencing guidelines when the reasons provided for the departure are invalid or unsupported by the record.
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Join FLexlaw to unlock all legal intelligence“he cannot be convicted and sentenced for delivery and possession with intent to deliver the same quantity of cocaine”
Establishes the core legal principle that prohibits dual convictions for the same conduct
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Join FLexlaw to unlock all legal intelligenceMincey was charged in two separate circuit court cases with possession of cocaine with intent to deliver and delivery of cocaine on different dates. A…
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SCHOONOVER, Acting Chief Judge.
The appellant, Adolf Alvin Mincey, challenges the judgments and sentences imposed against him after he was found guilty of two counts of possession of cocaine with intent to deliver and two counts of delivery of cocaine. We affirm in part and reverse in part.
The appellant was charged in circuit court case number CF86-6029 with possession of cocaine with intent to deliver and with delivery of cocaine. In ease number CF86-6030, he was charged with committing the same offenses on a different date. The trial court denied the appellant’s mo tion to dismiss one of the charges in each case on the ground that he could not be convicted of both possession with intent to deliver and delivery of the same cocaine. After a jury found the appellant guilty as charged in the informations, the court adjudicated him guilty and sentenced him to serve a departure sentence of fifteen years on each charge. The sentences were to be served concurrently. This timely appeal followed.
The appellant contends, and the state concedes, that he cannot be convicted and sentenced for delivery and possession with intent to deliver the same quantity of cocaine. Since the offenses occurred prior to the effective date of the 1988 amendment to section 775.021(4), Florida Statutes (1985), and the two counts in each information were predicated on a single underlying act, we agree that the appellant was improperly convicted and sentenced for both charges. State v. Burton, 555 So. 2d 1210 (Fla.1989); State v. Smith, 547 So. 2d 613 (Fla.1989); Carawan v. State, 515 So. 2d 161 (Fla.1987); Fuentes v. State, 533 So. 2d 311 (Fla. 2d DCA 1988).
We also agree with the appellant’s contention that the court improperly departed from the guidelines when sentencing him. All of the reasons given by the trial court to support an upward departure from the guidelines were either invalid, or not supported by the record. Lozano v. State, 540 So. 2d 131 (Fla. 2d DCA 1989); Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988); Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987).
We, accordingly, reverse and remand for the purpose of vacating one of the appellant’s convictions in each case and after recalculating the sentence for the remaining convictions, for resentencing within the guidelines. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
Reversed and remanded with instructions.
LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Arnold v. State, 578 So. 2d 515 (Fla. 4th DCA 1991)…of Carawan by section 775.-021(4), Florida Statutes (Supp.1988) (effective July 1, 1988). Under Carawan, the dual convictions and sentences for posses [*518] sion with intent to deliver and delivery of the same cocaine cannot stand. Mincey v. State, 563 So. 2d 811 (Fla. 2d DCA 1990). See also State v. Smith, 547 So. 2d 613 (Fla.1989) (cannot have separate convictions for both sale and possession with intent to sell); Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988) (same), approved, Smith. Cf. State v. Burt…
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Pickett v. State, 573 So. 2d 177 (Fla. 2d DCA 1991)…[*178] PER CURIAM. We affirm appellant’s convictions for delivery of cocaine and escape. Appellant’s conviction for possession of cocaine with intent to deliver must be vacated. Mincey v. State, 563 So. 2d 811 (Fla. 2d DCA 1990). Appellant was also convicted, initially, of “attempted resisting arrest with violence” as a lesser included offense of resisting arrest. Defense counsel apparently requested such an instruction at appellant’s jury trial. As rec…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Serpa v. State, 555 So. 2d 1210 (Fla. 1989)
- State v. Burton, 555 So. 2d 1210 (Fla. 1989)
- Americo Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988)
- Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987)
- Oretelio DeJesus Fuentes v. State, 533 So. 2d 311 (Fla. 2d DCA 1988)
- Lozano v. State, 540 So. 2d 131 (Fla. 2d DCA 1989)