BENJAMIN FORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convicting a defendant for both trafficking in cocaine and possession of cocaine with intent to sell for the same contraband in a single episode violates double jeopardy rights.
Ford was convicted of trafficking in cocaine and possession of cocaine with intent to sell for the same amount of contraband, in a single episode. He …
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Ford appeals from his convictions and sentences for trafficking in over 28 grams of cocaine, without a weapon,1 possession of cocaine with intent to sell2 and possession of a firearm by a convicted felon.3 He was sentenced to 8 years in prison on each count, to run concurrently. We affirm in part, but reverse the possession conviction and sentence on double jeopardy grounds. U.S. Const. Amend. V; Fla. Const. Art. I, § 9.
In this case, it was established that Ford was convicted of trafficking in cocaine and possession of cocaine with intent to sell for the same amount of contraband, in a single episode. To convict him of both offenses violates Ford’s double jeopardy rights. Johnson v. State, 712 So. 2d 380 (Fla.1998). Nor do we think Ford waived the double jeopardy issue in this case by his attorney’s failure to object to instructions4 or move to dismiss the possession count.
It has been repeatedly held that double jeopardy rights are fundamental in nature and are not waived, absent a knowing waiver. See State v. Johnson, 483 So. 2d 420, 422 (Fla.1986); Rivera v. State, 745 So. 2d 343 (Fla. 4th DCA 1999); Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997); Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996). As such it can be raised at any time, including for the first time on appeal. Id. In this case there was no affirmative or knowing waiver. Accordingly, we affirm in all regards except for the conviction and sentence for possession, which we vacate.
AFFIRMED in part; REVERSED in part.
HARRIS and PETERSON, JJ., concur. . §§ 893.135(l)(b)(l)(a); 893.03(2)(a)(4); 775.087(1), Fla. Stat. . §§ 893.13(l)(a)(l), 893.03(2)(a)(4), Fla. Stat. . § 790.23, Fla. Stat. . Waiver of double jeopardy rights will not be implied from mere silence or a failure to object. Johnson v. State, 460 So. 2d 954, 957 (Fla. 5th DCA 1984), approved, 483 So. 2d 420 (Fla.1986).
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Holliday v. State, 781 So. 2d 496 (Fla. 5th DCA 2001)…IRMED. SHARP, W. and PLEUS, J.J., concur. . See U.S. Const, amend. V; Art. I, § 9, Fla. Const. . Although this claim was not raised in the trial court, double jeopardy rights are fundamental in nature and can be raised at any time. Ford v. State, 749 So. 2d 570, 571 (Fla. 5th DCA 2000).…
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Roedel v. State, 773 So. 2d 1280 (Fla. 5th DCA 2000)…in the record to indicate a waiver of the double jeopardy or statutory bar violation. See Novaton, 634 So. 2d at 609. This type of error may also be raised for the first time on appeal. See State v. Johnson, 483 So. 2d 420 (Fla.1986); Ford v. State, 749 So. 2d 570 (Fla. 5th DCA 2000). Accordingly, we vacate the conviction and sentence for the lesser offense of driving without a valid license. We also note conflict with Lanier v. State, supra. AFFIRMED in part; Judgment REVERSED; Sentence VACATED as to the Of…
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Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)
- Rivera v. State, 745 So. 2d 343 (Fla. 4th DCA 1999)
- Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997)
- Tommie v. Johnson, 712 So. 2d 380 (Fla. 1998)
- Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996)