TOMMIE M. SEWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for post-conviction relief was not cognizable under rule 3.800(a) because it attacked his judgments of conviction and raised factual issues, and that prior convictions for sale and possession of cocaine do not violate double jeopardy.
The defendant sought post-conviction relief, arguing his convictions for sale and possession of cocaine violated double jeopardy principles. The trial…
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MONACO, J.
Tommie M. Seward seeks relief pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, arguing that his convictions of sale of cocaine, possession of cocaine with intent to sell or deliver, sale of cocaine and possession of cocaine violate the principles of double jeopardy. The trial court denied relief. We do so as well.
Mr. Seward’s motion for post-conviction relief constitutes an attack on his judgments of conviction, not an attack on his sentences. Moreover, he raises factual issues that are not determinable on the face of the judgment. His argument, therefore, is not cognizable in a rule 3.800(a) proceeding. See Smith v. State, 886 So. 2d 336 (Fla. 5th DCA), cause dismissed, 902 So. 2d 792 (Fla.2004).
Finally, as to the convictions for sale of cocaine and possession or possession with intent to sell or deliver, we have previously held on the basis of State v. McCloud, 577 So. 2d 939 (Fla.1991), that double jeopardy is not offended by convictions for both. See McMullen v. State, 876 So. 2d 589 (Fla. 5th DCA 2004).
Accordingly, we affirm.
AFFIRMED.
SAWAYA and LAWSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Thomas v. State, 61 So. 3d 1157 (Fla. 1st DCA 2011)…dual convictions for sale of cocaine within 1,000 feet of a place of worship and possession of the same cocaine with intent to sell or deliver within 1,000 feet of a place of worship did not constitute double jeopardy. Similarly, in Seward v. State, 937 So. 2d 767, 768 (Fla. 5th DCA 2006), the Fifth District held on the authority of McCloud that double jeopardy does not arise when a defendant is simultaneously convicted of “sale of cocaine and possession or possession with intent to sell or deliver.” As note…
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George v. State, 213 So. 3d 966 (Fla. 1st DCA 2015)…rdy violation would require vacating an underlying conviction.” Coughlin v. State, 932 So. 2d 1224, 1226 (Fla. 2d DCA 2006). Thus, Appellant’s claims are not cognizable in a rule 3.800(a) motion, as they are procedurally barred. Cf. Seward v. State, 937 So. 2d 767 (Fla. 5th DCA 2006) (holding that double jeopardy challenge to sentences imposed for sale and possession of cocaine was not cognizable in 3.800(a) motion as it was a challenge to convictions, and required an evidentiary hearing to determine factual…
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Vazquez v. State, 969 So. 2d 1195 (Fla. 5th DCA 2007)…PER CURIAM. See Seward v. State, 937 So. 2d 767 (Fla. 5th DCA 2006); Smith v. State, 886 So. 2d 336 (Fla. 5th DCA), cause dismissed, 902 So. 2d 792 (2004). AFFIRMED. ORFINGER, MONACO and EVANDER, JJ., concur.…
Authorities Cited
- State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)
- Scottie McMULLEN v. State, 876 So. 2d 589 (Fla. 5th DCA 2004)
- Hinton v. Hinton, 886 So. 2d 336 (Fla. 5th DCA 2004)
- Smith v. State, 886 So. 2d 336 (Fla. 5th DCA 2004)