ROMAN STANKIEWICZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence did not support the trial court's determination of two separate sales for double jeopardy purposes, but affirmed the conviction.
[1] A conviction will be affirmed when the trial judge properly submits factual issues to the jury and there is sufficient evidence to support the jury's resolution.
[2] A motion to dismiss on grounds of entrapment is properly denied when there is evidence supporting the jury's resolution of factual issues.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of drug offenses. The trial court found two separate sales occurred, allowing for multiple charges. The evidence showed two qu…
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FARMER, J.
We affirm defendant’s conviction against his argument of entrapment. The trial judge properly submitted the factual issues to the jury, and there is evidence supporting its resolution. There is no error in the denial of his motion to dismiss on grounds of entrapment.
As to the double jeopardy claim, we find that the evidence does not support the trial court’s determination that there were two separate sales, during which defendant could have paused, reflected and intentionally committed an additional crime. See Eaddy v. State, 789 So. 2d 1093, 1095 (Fla. 4th DCA 2001) (“In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.” [c.o.]); Mijarez v. State, 889 So. 2d 827, 828 (Fla. 4th DCA 2004) (“spatial and temporal aspects of the surrounding circumstances” must be analyzed to determine whether defendant had ‘time to pause, reflect, and form a new criminal intent between occurrences’ [c.o.]).
The evidence shows that the two participants had not previously mentioned the quantity of cocaine. Their only discussion before the meeting was as to how much money the “buyer” (undercover officer) should bring to the meeting. Defendant told the buyer to bring $5,000 with him. When they finally met, defendant had arrived with two separate quantities of the substance — one of 63 grams, the other of 10 grams. The buyer-detective attempted to purchase both quantities for the $5,000 but ultimately paid $500 more for the smaller one. This evidence is not enough to establish two separate crimes.
We therefore affirm a single conviction, reverse the sentences imposed and remand for resentencing to conform to this opinion.
Conviction Affirmed; Remanded for Resentencing.
GUNTHER, J., and DONNER, AMY STEELE, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Relyea Theartis Richardson v. State, 969 So. 2d 535 (Fla. 1st DCA 2007)…ical legal elements, the two convictions arise from two factually separate and distinct sales of cocaine, sales which may be punished separately without violating double jeopardy prohibitions. The Fourth District’s decision in Stankiewicz v. State, 921 So. 2d 863 (Fla. 4th DCA 2006), to reverse one of two convictions for sale of cocaine on double jeopardy grounds is distinguishable. Stankiewicz involved the sale of cocaine to a single undercover officer. Prior to the meeting at which the sale occurred, Stank…
Authorities Cited
- Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001)
- Mijarez v. State, 889 So. 2d 827 (Fla. 4th DCA 2004)