DERRICK MICHAEL ODOM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dual convictions for attempted manufacture and trafficking of methamphetamine violate double jeopardy.
Derrick Odom was convicted of attempted manufacture and trafficking of methamphetamine. The trial court granted a judgment of acquittal on the traffic…
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Derrick Odom was charged by second amended information with, inter alia, manufacture of methamphetamine1 and trafficking in methamphetamine and/or pseu-doephedrine.2 The jury found him guilty of the lesser included offense of attempted manufacture of methamphetamine and guilty of trafficking in more than 28 grams but less than 200 grams. Subsequent to the jury verdict, the trial court granted a motion for judgment of acquittal on the trafficking count. This court reversed the order granting Odom’s motion for judgment of acquittal, concluding that the State had presented sufficient evidence to support the jury verdict. State v. Odom, 56 So.3d 46 (Fla. 5th DCA 2011). Pursuant to our remand instructions, the trial court reinstated the jury verdict and sentenced Odom on the trafficking charge.
On appeal, Odom raises several issues of which only one has merit. He correctly argues that his dual convictions for attempted manufacture of methamphetamine and trafficking in methamphetamine and/or pseudoephedrine violate double jeopardy. See, e.g., Fonseca v. State, — So.3d-(Fla. 5th DCA 2012) (“We agree that Fonseca’s convictions of both trafficking in amphetamine and manufacturing of methamphetamine violate double jeopardy and vacate the conviction and sentence of manufacture of methamphetamine.”); Stacey v. State, 83 So.3d 749 (Fla. 5th DCA 2011).
Accordingly we direct the trial court to vacate Odom’s conviction for attempted manufacture of methamphetamine. See Capron v. State, 948 So.2d 954, 961 (Fla. 5th DCA 2007) (when multiple convictions violate double jeopardy, proper remedy is to vacate conviction for lesser offense while affirming conviction for greater one).
AFFIRMED, in part; REVERSED, in part; REMANDED.
LAWSON and COHEN, JJ„ concur.
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Citator
Cited By
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Gonzalez v. State, 123 So. 3d 691 (Fla. 4th DCA 2013)…he trafficking of that controlled substance in the same quantity and under the same conduct violate double jeopardy. See Latos v. State, 39 So. 3d 511, 513-14 (Fla. 4th DCA 2010); Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012); Odom v. State, 104 So. 3d 1238, 1239 (Fla. 5th DCA 2012). In the present case, as in Latos, the trafficking conduct was the same conduct constituting the lesser offense, rendering the defendant’s conviction under both counts violative of double jeopardy. The State does not argue…
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Palmer v. State, 180 So. 3d 1096 (Fla. 1st DCA 2015)…ethamphetamine where the conduct underlying the trafficking conviction is possession.* AFFIRMED. [*1099] BILBREY, J., concurs. THOMAS, J., concurs in result only. * We acknowledge other appellate decisions holding differently. See Odom v. State, 104 So. 3d 1238 (Fla. 5th DCA 2012); Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012). However, those decisions do not indicate whether the trafficking charges were based on manufacturing or some other proscribed conduct. -Therefore, we do not consider our de…
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Perez-Riva v. State, 152 So. 3d 98 (Fla. 2d DCA 2014)…on required manufacturing, which trafficking did not require, and trafficking required possession of twenty-five pounds or more of cannabis, which cultivation did not require. On appeal, the State concedes error. We agree. See, e.g., Odom v. State, 104 So. 3d 1238 (Fla. 5th DCA 2012) (holding dual convictions of attempted manufacture of methamphetamine and trafficking violated double jeopardy); Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012) (holding convictions for both manufacturing and trafficking sa…
Authorities Cited
- Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)
- State v. Odom, 56 So. 3d 46 (Fla. 5th DCA 2011)
- Stacey v. State, 83 So. 3d 749 (Fla. 5th DCA 2011)