EDDIE LEE MOSELY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant can be convicted of both trafficking and possession of cocaine when different types of cocaine are found in separate locations, distinguishing this from cases where the same drug is found in multiple containers.
[1] A defendant may not be convicted of both trafficking by possession and simple possession of the same drugs when both offenses are predicated upon possession of the same a…
[2] Separate convictions for trafficking in cocaine and possession of cocaine are permissible when the crack cocaine and powdered cocaine residue are found in different locat…
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Join FLexlaw to unlock all legal intelligenceOfficers seized cocaine and marijuana from the appellant's vehicle during a traffic stop. Cocaine was found in the trunk and as residue in a wallet, w…
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PER CURIAM.
Eddie Lee Mosely appeals from his convictions and sentences for trafficking in cocaine, possession of cocaine, and possession of marijuana. He raises four issues on appeal, three of which merit discussion.
Contraband was seized from Mosely’s vehicle by officers during a valid traffic stop. One of the officers saw a marijuana cigarette in the ashtray in plain view and smelled the odor of marijuana coming from the vehicle. A search revealed thirty-one grams of marijuana in a wheel well, thirty-seven grams of crack cocaine in the floor liner of the trunk, and powdered cocaine residue in Mosely’s wallet.
Mosely challenges his convictions for both trafficking in cocaine and possession of cocaine, saying that the State should charge him with one or the other. His contention is that he was in possession of one lot of cocaine, albeit in different locations, so he is guilty of only one crime. We disagree and, in so doing, find Mosely’s reliance on Lundy v. State, 596 So. 2d 1167 (Fla. 4th DCA 1992) misplaced.
In Lundy, the court held that the defendant could not be convicted of both trafficking by, possession and simple possession of the same drug because both offenses were predicated upon his possession of the same cocaine at the same time and place. Part of the cocaine in that case was found in a bag while another part of it was found in a box, both of which were located in the passenger compartment of a vehicle. Rejecting the State’s argument that the existence of differing amounts of cocaine in two separate containers supported dual convictions, one for trafficking and one for possession, the court reasoned that to hold that a separate possessory crime is committed for each packet or package of the controlled substance within an offender’s possession at a given time and place goes well beyond the statutory elements of the crime. To allow such an arrest would lead to absurd scenarios, including the state’s charging more counts for the same amount of narcotics only due to the increased number of small packages of that illegal substance. Id. at 1168. See also Graham v. State, 631 So. 2d 388 (Fla. 1st DCA 1994) (sentencing appellant for possession of more than twenty grams of marijuana and possession of same marijuana with intent to sell violates prohibition against double jeopardy); Pasley v. State, 625 So. 2d 1303 (Fla. 1st DCA 1993) (same).
We find Lundy to be clearly distinguishable on its facts. The holding in Lundy is simply the well established principle that “a defendant may not be convicted of both trafficking, by possession, and of simple possession of the same drugs.” Id. at 1168 (emphasis supplied) (citation omitted). Simply stated, the Lundy court found that even though the cocaine was found in two separate containers, it constituted one aggregate quantity of cocaine.
Sub judice, unlike Lundy, Mosely was not charged and convicted of trafficking by possession and possession of the same drugs. Here, the officers found 37 grams of crack cocaine concealed in the trunk of Mosely’s automobile. The officers also found a baggy with powdered cocaine residue inside Mosely’s wallet. This is not the situation where the State apportioned the same drugs and came up with separate charges. The powdered cocaine residue found in Mosely’s wallet had nothing to do with the crack cocaine found concealed in the trunk of Mosely’s automobile. Cf. Collins v. State, 489 So. 2d 188 (Fla. 5th DCA 1986). Consequently, the evidence supports Mosely’s convictions for both trafficking in cocaine and possession of cocaine.
As to the inconsistency between the oral sentencing pronouncement and the written order, the State acknowledges that oral sentencing pronouncements control over provisions in a written order where the discrepancy is caused by clerical error. See Anderson v. State, 616 So. 2d 200 (Fla. 5th DCA 1993); Avery v. State, 543 So. 2d 296 (Fla. 5th DCA), review dismissed, 553 So. 2d 1164 (Fla.1989). It does not, however, concede the error was clerical. On remand, a hearing should be held to determine the actual sentence intended. See Wilkins v. State, 543 So. 2d 800 (Fla. 5th DCA), review denied, 554 So. 2d 1170 (Fla.1989).
Finally, Mosely was improperly required to pay First Step of Volusia County, Inc. $120 as a special condition of his probation. See Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994) (en banc). Accordingly, that provision is stricken.
AFFIRMED in part; REVERSED in part; REMANDED.
COBB and GOSHORN, JJ., concur. DAUKSCH, J., dissents, without opinion.
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Gibbs v. State, 676 So. 2d 1001 (Fla. 4th DCA 1996)…e, denying knowledge of the secreted stash in the back seat, while at the same time acknowledging concealment of the cellophane wrapper in his hand, distinguish this ease from Lundy v. State, 596 So. 2d 1167 (Fla. 4th DCA 1992). Cf. Mosely v. State, 659 So. 2d 1342 (Fla. 5th DCA), rev. denied, 666 So. 2d 144 (Fla.1995). But see Deltoro v. State, 546 So. 2d 1169 (Fla. 3d DCA 1989), with which I would acknowledge conflict. Therefore, in my judgment, it is not necessary to reach the larger issue treated en banc.…1 / 2
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Ellis v. State, 816 So. 2d 759 (Fla. 4th DCA 2002)…Corrections in the pre-sentence investigation report or it may be a condition of drug offender probation. The written order does not reference any statutory authority for the imposition of this fee. We remand for clarification. See Mosely v. State, 659 So. 2d 1342, 1344 (Fla. 5th DCA 1995) (remanding for a hearing to determine the actual sentence intended where State does not concede that inconsistency between the oral sentencing pronouncement and the written order is a result of clerical error). POLEN, C.J.…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilkins v. State, 543 So. 2d 800 (Fla. 5th DCA 1989)
- Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994)
- Goshay v. State, 646 So. 2d 213 (Fla. 1st DCA 1994)
- Lundy v. State, 596 So. 2d 1167 (Fla. 4th DCA 1992)
- Pasley v. State, 625 So. 2d 1303 (Fla. 1st DCA 1993)
- Avery v. State, 543 So. 2d 296 (Fla. 5th DCA 1989)
- Collins v. State, 489 So. 2d 188 (Fla. 5th DCA 1986)
- Anderson v. State, 616 So. 2d 200 (Fla. 5th DCA 1993)
- Graham v. State, 631 So. 2d 388 (Fla. 1st DCA 1994)
- Pardo v. Denny's, Inc., 631 So. 2d 388 (Fla. 1st DCA 1994)