STEVE ANTON DAVIS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed whether dual convictions and sentences for possession and delivery of the same controlled substance violate double jeopardy and Florida Statutes section 775.021(4)(b). The Court affirmed the Fifth District's decision, holding that possession is not a lesser included offense of delivery and therefore separate convictions are proper.
The Court held that dual convictions and sentences for possession and delivery of the same controlled substance do not violate double jeopardy or section 775.021(4)(b) because possession is not a lesser included offense of delivery. Separate convictions and sentences for both crimes are proper.
[1] Conviction and sentencing for both sale and possession of the same quantum of contraband is improper when the crimes occurred before the effective date of section 775.021…
[2] Conviction and sentencing for both sale and possession of the same quantum of contraband is permissible when the crimes occurred after the effective date of section 775.0…
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Join FLexlaw to unlock all legal intelligence“possession is not a lesser included offense of delivery”
Establishes the legal principle that allows separate convictions for both possession and delivery crimes
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Join FLexlaw to unlock all legal intelligenceDavis was charged, convicted, and sentenced for both possession of a controlled substance and delivery of a controlled substance based on a single inc…
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GRIMES, Justice.
We review Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990), based on conflict with V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Davis was charged, convicted, and sentenced for possession of a controlled substance and delivery of a controlled substance. The offenses occurred on August 25,1988, when Davis handed an undercover agent one piece of crack cocaine. The Fifth District Court of Appeal affirmed Davis’s convictions and sentences, rejecting the argument that separate convictions and sentences based on the same episode violated double jeopardy and section 775.-021(4)(b), Florida Statutes (Supp.1988).
In V.A.A. v. State, the district court certified the following as a 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 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?
561 So. 2d at 315. The district court certified the same question in State v. McCloud, 559 So. 2d 1305, 1306 (Fla. 2d DCA 1990). Based on our recent decisions in State v. V.A.A., 577 So. 2d 941 (Fla.1991), and State v. McCloud, 577 So. 2d 939 (Fla.1991), we approve the decision of the Fifth District Court of Appeal in this case.
In McCloud we rejected the argument that subsection 775.021(4)(b)(3), Florida Statutes (Supp.1988),1 prohibits dual convictions and sentences for possession and sale of cocaine based on the same act. The same analysis applies to Davis’s convictions for possession and delivery of a controlled substance. See State v. Daophin, 533 So. 2d 761 (Fla.1988) (possession is not a lesser included offense of delivery). Accordingly, we approve the decision of the Fifth District Court of Appeal that affirmed Davis’s convictions and sentences. We do not address the remaining arguments raised by Davis.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD and HARDING, JJ., concur. BARKETT, J., concurs specially with an opinion, in which KOGAN, J., concurs.
. Section 775.021(4)(b)(3), Florida Statutes (Supp.1988), provides:
The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
BARKETT, Justice,
specially concurring.
I agree that this case is controlled by State v. McCloud, 577 So. 2d 939 (Fla.1991); however, I adhere to the views expressed in my dissent therein.
KOGAN, J., concurs.
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Cited By (11 total)
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Perrin v. State, 599 So. 2d 1365 (Fla. 1st DCA 1992)…se because 775.021(4)(a) cautions that “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.” 577 So. 2d at 941. See also Davis v. State, 581 So. 2d 893 (Fla.1991) (convictions for possession and delivery of the same drug are permissible), approving, Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990) (the test is not whether possession is an element under the facts of the case before us, but whethe…
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State v. Denton S. McNAB, 642 So. 2d 41 (Fla. 5th DCA 1994)…(Fla.1982) (followed Supreme Court holding that imposition of consecutive sentences for violation of two separate statutes in one criminal transaction is not barred by double jeopardy); Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990), approved, 581 So. 2d 893 (Fla.1991) (declining to construe Florida’s double jeopardy provision as granting greater protection than the Fifth Amendment). Indeed, the Florida Supreme Court has specifically held that a prosecution in Florida following a prosecution in another…
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State v. Oliver, 581 So. 2d 1304 (Fla. 1991)…BARKETT, Justice. We review Oliver v. State, 569 So. 2d 945 (Fla. 1st DCA 1990), based on direct conflict with Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990), approved, 581 So. 2d 893 (Fla.1991).1 Bobby Charles Oliver was convicted of two counts of possession with intent to sell cocaine and two counts of sale of cocaine arising out of two separate incidents. The district court reversed and remanded for vacation of one of the con…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)
- State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)
- V.A.A. v. State, 561 So. 2d 314 (Fla. 2d DCA 1990)
- Davis v. State, 560 So. 2d 1231 (Fla. 5th DCA 1990)
- State v. V.A.A., 577 So. 2d 941 (Fla. 1991)
- State v. McCLOUD, 559 So. 2d 1305 (Fla. 2d DCA 1990)