FERNANDO ALVAREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fernando Alvarez appealed his convictions for possession of cannabis over 20 grams and conspiracy to possess cannabis, challenging double jeopardy claims and sentencing guidelines compliance. The appellate court affirmed the convictions and sentencing but remanded to correct scrivener's errors in the judgment and to clarify and correct invalid probation/community control conditions.
The court affirmed Alvarez's convictions and the sentence of two years community control followed by three years probation as not departing from guidelines. The court reversed and remanded to correct scrivener's errors in the judgment identifying the convictions and to clarify and invalidate certain probation/community control conditions that violated prior precedent or were impermissibly vague.
[1] A subsequent prosecution does not constitute double jeopardy if it arises from a different county than the initial prosecution.
[2] A sentence of community control followed by probation is not a departure from sentencing guidelines.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We disagree with his argument that a subsequent prosecution in Polk County constituted double jeopardy.”
Establishes that the court rejected Alvarez's double jeopardy challenge to the subsequent prosecution
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Join FLexlaw to unlock all legal intelligenceAlvarez was convicted of possession of cannabis over 20 grams and conspiracy to possess cannabis over 20 grams. He was sentenced to two years of commu…
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LEHAN, Judge.
We affirm defendant’s convictions for possession of cannabis over 20 grams and for conspiracy to possess cannabis over 20 grams. We disagree with his argument that a subsequent prosecution in Polk County constituted double jeopardy. Gordon v. State, 528 So. 2d 910, 911 n. 2 (Fla. 2d DCA 1988), affirmed sub nom., State v. Smith, 547 So. 2d 613 (Fla.1989), receded from sub nom. in part on other grounds, St. Clair v. State, 575 So. 2d 243 (Fla. 2d DCA) (en banc), review denied, 582 So. 2d 623 (Fla.1991). We also disagree that the sentence imposed, two years community control to be followed by three years probation, was a departure from the guidelines. Skeens v. State, 556 So. 2d 1113, 1114 (Fla.1990).
However, we agree with defendant that the judgment contains a scrivener’s error. On remand, the trial court should correct the judgment to indicate that defendant’s convictions are for possession of cannabis over 20 grams and for conspiracy to pos sess cannabis over 20 grams, not the crimes for which he was originally charged.
On remand the trial court should also clarify and correct the terms of defendant’s community control and probation. While it appears that the court only intended, as indicated by circled portions of form orders, to order that defendant not consume any alcohol or illegal drugs, both the defendant and the state on appeal appear to assume that the trial court imposed other conditions as well. As guidance on remand, we address as follows the propriety of all the conditions that appear to be at issue: (1) Consumption of alcohol. This condition is invalid under Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990), a factually analogous case. (2) Consumption of illegal drugs. Patently valid. (3) Possession of alcohol or illegal drugs. Invalid before the “or”; valid after it. Ed-munds. (4) Associate with persons who use alcohol or illegal drugs. Invalid as to alcohol; too vague and capable of unintentional violation as to illegal drugs under Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989). (5) Frequent places where alcohol is the main source of business or illegal drugs are used. Invalid again as to alcohol; as to drugs, invalid under Huff as the places defendant is to avoid were not “defined specifically.” 554 So. 2d at 617.
Affirmed in part, reversed in part, and remanded.
SCHOONOVER, C.J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Deldesondro Callaway v. State, 658 So. 2d 593 (Fla. 2d DCA 1995)…orally pronounced they must be stricken. We also strike that portion of condition (18) which prohibits the appellant from associating with persons who use illegal drugs since it is too vague and capable of unintentional violation. Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992). Furthermore, we strike that portion of the condition which prohibits the appellant from frequenting places where illegal drugs are used since the places the appellant is to avoid are not specifically defined. Alvarez, 593 So. 2d…
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Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993)…id.” Moreover, the condition was not announced orally at the sentencing hearing, thus depriving Gregory of the opportunity to raise any objection he might have had. Regarding the claim of vagueness, Gregory relies principally upon Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992), and Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989). One of the conditions stricken in Alvarez involved “consumption of alcohol.” Citing Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990), the court found this condition was unr…
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Kendall Douglas Pratt v. State, 601 So. 2d 619 (Fla. 2d DCA 1992)…in Williams v. State, 556 So. 2d 480, 481 (Fla. 2d DCA 1990) explicitly approved a virtually identical condition: “Will not ... visit places where intoxicants and drugs are unlawfully sold, dispensed or used.” As for condition 11, Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992) involved a similar condition and situation. Alvarez held the condition was invalid as to alcohol but valid as to illegal drugs. Id. at 290. Thus, we affirm condition 11 with regard to illegal drugs but strike it with regard to alc…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Skeens v. State, 556 So. 2d 1113 (Fla. 1990)
- Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990)
- Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989)
- ST. Clair v. State, 575 So. 2d 243 (Fla. 2d DCA 1991)