KENTURAH L. KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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King challenged prosecution for cocaine possession after pleading no contest to drug paraphernalia possession, arguing double jeopardy barred sequential prosecution based on the same conduct. The court affirmed dismissal denial, holding that the two offenses are separate under the Blockburger test because each requires proof of an element the other does not.
The trial court properly denied the motion to dismiss because possession of cocaine and possession of drug paraphernalia are separate offenses under the Blockburger test. Each offense requires proof of an element the other does not, and therefore no double jeopardy violation occurs.
[1] Separate prosecutions for possession of drug paraphernalia and possession of cocaine are permissible under the Double Jeopardy Clause when each offense requires proof of…
[2] The "same elements" test, as codified in Florida Statutes section 775.021(4), governs double jeopardy determinations, replacing the "same conduct" test.
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Join FLexlaw to unlock all legal intelligence“Because the Supreme Court's decision in U.S. v. Dixon allows both prosecutions, we affirm the trial court's denial of the motion to dismiss the possession of cocaine charge.”
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Join FLexlaw to unlock all legal intelligenceKing was arrested and found in possession of crack cocaine pipes containing cocaine residue. She was charged with both possession of drug paraphernali…
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FULMER, Judge.
In this appeal we are asked to determine whether a defendant who has pled no contest to possession of drug paraphernalia may be prosecuted later for possession of the cocaine contained in the paraphernalia. Because the Supreme Court’s decision in U.S. v. Dixon1 allows both prosecutions, we affirm the trial court’s denial of the motion to dismiss the possession of cocaine charge.
After being arrested on an outstanding warrant, the defendant, Kenturah King, was searched and found to be in possession of crack cocaine pipes containing cocaine residue. She was placed under arrest for possession of drug paraphernalia and possession of cocaine.2 At arraignment on October 7, 1992, she pled no contest to the misdemeanor charge of possession of drug paraphernalia. On October 13, 1992, the state filed an information charging the defendant with possession of cocaine. Citing Grady v. Corbin,3 the defendant moved to dismiss the information on double jeopardy grounds because the same conduct formed the basis of both the possession of cocaine and possession of drug paraphernalia charges.
In Dixon, the Supreme Court overruled Grady and receded from the “same conduct” test, holding that the “same elements” test formulated in Blockburger v. U.S.4 would control in double jeopardy determinations. The Blockburger test, as codified in section 775.021(4), Florida Statutes (1991), provides 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. To prove possession of drug paraphernalia, it is not necessary for the state to prove the presence of a controlled substance. To prove possession of cocaine, it is not necessary to prove possession or use of any drug paraphernalia. Thus, each offense has an element the other does not and they are therefore, separate offenses for which separate convictions and sentences may be obtained. There being no double jeopardy vio lation, we conclude that the defendant’s motion to dismiss was properly denied.
Affirmed.
HALL, A.C.J., and BLUE, J., concur. . 509 U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
. §§ 893.147(1) and 893.13(6), Fla.Stat. (1991).
. 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
. 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Rakran Amin Mateen, 678 So. 2d 449 (Fla. 2d DCA 1996)…the same conduct. Blockburger established the “same elements” test, which examines whether each offense contains a statutory element that is not contained in the other offense. See State v. Gregory, 648 So. 2d 1220 (Fla. 2d DCA 1995); King v. State, 637 So. 2d 956 (Fla. 2d DCA 1994). In the present case, the crime charged in the information must be compared with the crimes charged in the indictment. The crimes charged in the indictment, first-degree murder, attempted armed robbery, and attempted murder, do n…
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Taylor v. State, 726 So. 2d 841 (Fla. 1st DCA 1999)…swer is self evident, even though under Florida law a defendant convicted of possession of drug paraphernalia may also be prosecuted and convicted for the separate crime of possession of the cocaine contained in the paraphernalia. See King v. State, 637 So. 2d 956 (Fla. 2d DCA 1994). Similarly, in the present case the charge of dealing in stolen property is a separate offense from the charge of burglary, even where the burglary produced the stolen property. The interconnection of the two crimes cannot, howev…
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Rogers v. State, 656 So. 2d 245 (Fla. 5th DCA 1995)…ferent (and thus not able to violate double jeopardy) if each requires proof of an element that the other does not. The determination of separateness vel non, should be made without regard to the accusatory pleading or proof at trial. King v. State, 637 So. 2d 956 (Fla. 2d DCA 1994); Thomas v. State, 633 So. 2d 1122 (Fla. 5th DCA), rev. denied, 640 So. 2d 1109 (Fla.1994); State v. Knowles, 625 So. 2d 88 (Fla. 5th DCA 1993); Von Deck v. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993). In this case, Rogers was ch…
Authorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Grady v. Corbin, 495 U.S. 508 (U.S. 1990)