GARY STEVE FONSECA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fonseca's convictions for trafficking in amphetamine and manufacturing methamphetamine violated double jeopardy, so the manufacture conviction was vacated while the conspiracy conviction was affirmed.
Convictions for both trafficking in amphetamine and manufacturing methamphetamine constitute double jeopardy violations and the manufacture conviction must be vacated.
[1] Convictions for both trafficking in amphetamine and manufacturing methamphetamine arising from the same conduct violate the Double Jeopardy Clause and the manufacture con…
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Join FLexlaw to unlock all legal intelligenceFonseca was convicted of trafficking in amphetamine, conspiracy to commit trafficking in amphetamine, and manufacture of methamphetamine.…
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Gary S. Fonseca appeals his convictions for trafficking in amphetamine, conspiracy to commit trafficking in amphetamine, and manufacture of methamphetamine. On appeal, Fonseca contends that (1) his trafficking in amphetamine and manufacture of methamphetamine convictions are barred by double jeopardy, (2) the trial court erred in denying his motion for judgment of acquittal regarding the conspiracy charge as there was no evidence of a conspiracy to manufacture a trafficking amount of amphetamine, and (3) section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes, is facially unconstitutional based on Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011).
We agree that Fonseca’s convictions of both trafficking in amphetamine and manufacturing of methamphetamine violate double jeopardy and vacate the conviction and sentence for manufacture of methamphetamine. See Stacey v. State, 83 So.3d 749 (Fla. 5th DCA 2011). We affirm Fonseca’s conspiracy conviction as it is founded on competent, substantial evidence. See State v. Odom, 56 So.3d 46 (Fla. 5th DCA 2011). Finally, we reject Fonseca’s challenge to the constitutionality of sections 893.13 and 893.101. See State v. Adkins, 37 Fla. L. Weekly S449 (Fla. 2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla.2012).
AFFIRMED in part and VACATED in part.
ORFINGER, C.J., EVANDER 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)…manufacture1 of a controlled sub [*692] stance and the 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 vio…
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Palmer v. State, 180 So. 3d 1096 (Fla. 1st DCA 2015)…king 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 deci [*1099] sion in this case to be in conflict with the…
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Perez-Riva v. State, 152 So. 3d 98 (Fla. 2d DCA 2014)…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 same drugs violated double jeopardy); Stacey v. State, 83 So. 3d 749 (Fla. 5th DCA 2011) (holding convictions for manufacture of methamphetamine and possession of metham…
Authorities Cited
- State v. Odom, 56 So. 3d 46 (Fla. 5th DCA 2011)
- Stacey v. State, 83 So. 3d 749 (Fla. 5th DCA 2011)