JEROME R. KELLAM AND RICHARD JACKSON, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1991-04-29
No. 89-3061
SMITH and NIMMONS, JJ., concur.
579 So. 2d 243 Florida District Court of Appeal, First District (1991)

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Synopsis

The Florida District Court of Appeal, on rehearing, affirmed convictions for both sale and possession of cocaine based on the Florida Supreme Court's recent holdings in V.A.A. and McCloud that dual convictions for sale and possession of the same contraband are proper when the crimes occurred after the effective date of section 775.021, Florida Statutes.


Holding

Dual convictions and sentences for both sale and possession of the same contraband are proper under section 775.021(4)(b) because possession of contraband is not a lesser-included offense of the crime of sale of contraband.


Headnotes

[1] A defendant may be convicted and sentenced for both sale and possession of the same contraband when the crimes occurred after the effective date of section 775.021, Flori…

[2] Possession of contraband is not a lesser-included offense of the crime of sale of contraband.

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Key Quotes

“a defendant may properly be convicted and sentenced for both sale and possession (or possession with intent to sell) of the same quantum of contraband where the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp.1988)”

Establishes the supreme court's holding that dual convictions are permissible for these offenses

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Facts & Procedural History

Jerome R. Kellam and Richard Jackson were convicted and sentenced for both sale or delivery of cocaine and possession of cocaine. The offenses occurre…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

The state moves for rehearing of this case in light of the supreme court’s recent opinions in State v. V.A.A., 577 So. 2d 941 (Fla.1991), and State v. McCloud, 577 So. 2d 939 (Fla.1991). The state contends that although this court correctly affirmed Kel-lam’s and Jackson’s separate convictions and sentences for sale or delivery of cocaine and possession of cocaine, we should rehear the case because we “did not resort to amended section 775.021(4)” in reaching our decision, and because conflict no longer exists between our decision and V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990), and State v. McCloud, 559 So. 2d 1305 (Fla. 2d DCA 1990). We grant the state’s motion for rehearing.

In V.A.A. and McCloud, the supreme court held that a defendant may properly be convicted and sentenced for both sale and possession (or possession with intent to sell) of the same quantum of contraband where the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp.1988). The court concluded that possession of contraband is not a lesser-included offense of the crime of sale of contraband, and therefore dual convictions and sentences for both offenses based on one act are proper under section 775.021(4)(b). Because the supreme court reached its conclusion in V.A.A. and McCloud by applying section 775.021(4) to the offenses and disposed of the need for an answer to our certified question, the opinion filed March 1, 1991, is withdrawn and appellants’ convictions for sale or delivery of cocaine and possession of cocaine are affirmed on the authority of State v. V.A.A., 577 So. 2d 941 (Fla.1991), and State v. McCloud, 577 So. 2d 939 (Fla.1991).

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


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