TASHA W. HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted and sentenced for both possession and trafficking of the same drugs when the trafficking offense is based on possession.
The deputy found two quantities of methamphetamine: one in the defendant's pocket and another in a bag she identified as hers, found near her. The def…
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DAVIS, Judge.
Tasha W. Howard challenges her judgments and sentences for possession of methamphetamine and trafficking in am phetamine or methamphetamine. She argues correctly that she may not be convicted and sentenced for both possession and trafficking because the evidence proved only a single count of trafficking.
The deputy found two quantities of methamphetamine. The first was three-quarters of an ounce that the deputy found in Howard’s pocket when he arrested her as she stood by a tree. The second was 14.9 grams found in a Crown Royal bag that was discovered near the tree and that Howard identified as belonging to her. Although the State argues that Howard’s convictions and sentences on the two offenses are permissible because she acquired the two amounts at different times, that is not the law. Pursuant to Gibbs v. State, 698 So. 2d 1206 (Fla.1997), and Sims v. State, 793 So. 2d 1153 (Fla. 4th DCA 2001), a defendant cannot be convicted of trafficking and possession of the same drugs. Where, as here, the trafficking offense is based on possession, the conduct element is the same for both trafficking and possession.
We therefore conclude that the trial court erred in entering convictions for both simple possession of methamphetamine and trafficking in methamphetamine. We affirm Howard’s judgment and sentence for trafficking in methamphetamine, but we reverse Howard’s judgment and sentence for possession of methamphetamine and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
CANADY, J., and SCHEB, JOHN M., Senior Judge, Concur.
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Cary Aubuchon v. State, 110 So. 3d 55 (Fla. 2d DCA 2013)…tion under more than one of the statutes is a violation of double jeopardy principles. Id. at 1209-10 (emphasis added). Thus, a defendant cannot be convicted of trafficking by possession and simple possession of the same drugs, see Howard v. State, 916 So. 2d 824, 825 (Fla. 2d DCA 2005), and this is true even when the drugs are packaged in multiple packages and carried separately, see Gibbs, 698 So. 2d at 1207-09 (finding that double jeopardy prohibited dual convictions for trafficking by possession of a lar…
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Garnett Melton v. State, 73 So. 3d 296 (Fla. 1st DCA 2011)…2d 553, 554 (Fla. 1st DCA 2003) (“We conclude that the defendant’s convictions for both trafficking in cocaine and possession of cocaine with intent to sell violate the double jeopardy clause of the Fifth Amendment .... ”); see also Howard v. State, 916 So. 2d 824, 824-25 (Fla. 2d DCA 2005) (holding that the appellant could not be convicted and sentenced for possession of methamphetamine and trafficking and noting that “[w]here, as here, the trafficking, offense is based on possession, the conduct element is…
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Palmer v. State, 180 So. 3d 1096 (Fla. 1st DCA 2015)…anufacture, delivery or possession with intent to sell, manufacture or deliver methamphetamine, and also convicted for trafficking in methamphetamine, “when the underlying conduct, i.e., possession, was the same for both offenses”); Howard v. State, 916 So. 2d 824, 824-25 (Fla. 2d DCA 2005) (holding double jeopardy principles prohibited punishing appellant for possession of methamphetamine and trafficking where “the trafficking offense [was] based on possession,” and thus “the conduct element is the same for…
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
- Gibbs v. State, 698 So. 2d 1206 (Fla. 1997)
- Sims v. State, 793 So. 2d 1153 (Fla. 4th DCA 2001)