ORLANDO JAVIER GONZALEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Gonzalez was convicted of both cultivation and trafficking of cannabis and sentenced to concurrent 60-month sentences. The Fourth District Court of Appeal reversed the cultivation conviction, finding that dual convictions for cultivation and trafficking of the same cannabis under the same conduct violated double jeopardy protections.
The court held that the dual convictions violate double jeopardy because the trafficking conduct was the same conduct constituting the lesser offense of cultivation. The cultivation conviction and sentence were reversed, and the case was remanded for resentencing based on the trafficking count alone.
[1] A double jeopardy violation arising from dual convictions for cultivation and trafficking of the same controlled substance under the same conduct can be raised as fundame…
[2] Dual convictions for the manufacture or cultivation of a controlled substance and the trafficking of that same controlled substance, arising from the same conduct, violat…
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Join FLexlaw to unlock all legal intelligence“dual convictions for sale or delivery or manufacture of a controlled substance and the trafficking of that controlled substance in the same quantity and under the same conduct violate double jeopardy”
Establishes the controlling legal principle that the court applied to find the double jeopardy violation
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Join FLexlaw to unlock all legal intelligenceGonzalez pleaded guilty to cultivation of cannabis (Count I) and trafficking in cannabis over twenty-five pounds (Count II). He was adjudicated guilty…
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The defendant in this case pled guilty to the charges of cultivation of cannabis (Count I) and trafficking in cannabis over twenty-five pounds (Count II). He was adjudicated guilty and sentenced to sixty months in prison on each count, the sentences to run concurrently. The defendant appeals his conviction on the cultivation charge and his sentence, arguing that being convicted under both counts violates double jeopardy. We agree with the defendant that his dual convictions violate double jeopardy, and we therefore reverse on the cultivation charge and remand for resentencing for the reasons stated below.
Although the defendant never raised the double jeopardy argument in the circuit court, the defendant correctly states that the issue can be raised as fundamental error on direct appeal. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994) (noting an exception to the waiver of a later double jeopardy attack -with a guilty plea and subsequent adjudication of guilt). We review this purely legal issue de novo. Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).
In following the Florida Supreme Court’s double jeopardy analysis in Johnson v. State, 712 So.2d 380, 381 (Fla.1998), this court, as well as the Fifth District, has held that dual convictions for sale or delivery or manufacture1 of a controlled sub*692stance 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 violative of double jeopardy. The State does not argue that the cultivation count is for cannabis distinct from the cannabis involved in the trafficking count, but even if it did, such an argument has been rejected by this court. See Sims v. State, 793 So.2d 1153, 1154 (Fla. 4th DCA 2001) (holding that convictions for possession with intent to sell cannabis and simple possession of cannabis could not be grounded on cannabis being found in different places in the house).
Therefore, we reverse the defendant’s conviction and sentence for cultivation of cannabis (Count I), and remand for the circuit court to vacate that conviction and sentence and to resentence the defendant based on the trafficking count (Count II) alone.
Reversed and Remanded.
GROSS, MAY and FORST, JJ., concur.
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Manata v. State, 213 So. 3d 973 (Fla. 1st DCA 2014)….2014) (holding that appropriate remedy for defendant improperly convicted of both theft and dealing in stolen property is to remand for court to vacate one of the sentences and to resentence the defendant on the remaining count); Gonzalez v. State, 123 So. 3d 691 (Fla. 4th DCA 2013) (reversing conviction and sentence on double jeopardy grounds and remanding for cir [*974] cuit court to resentence the defendant on the remaining count). AFFIRMED in part, REVERSED AND REMANDED in part, for proceedings consist…
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Arrington Brown v. State, 219 So. 3d 866 (Fla. 4th DCA 2017)…e firearm and ammunition. Accordingly, we reverse and remand for the trial court to vacate either of the convictions and resentence appellant on the remaining counts with a corrected score-sheet.1 Boyd v. State, 17 So. 3d at 818; Gonzalez v. State, 123 So. 3d 691 (Fla. 4th DCA 2013). Reversed and remanded. Ciklin, C.J., Damoorgian and Forst, JJ., concur. . Appellant did not waive his double jeopardy claim. He' entered an unbargained open plea without expressly waiving his right to bring the double jeopard…
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Perez-Riva v. State, 152 So. 3d 98 (Fla. 2d DCA 2014)…e, 793 So. 2d 1153, 1154 (Fla. 4th DCA 2001) (holding that convictions for possession with intent to sell and simple possession could not be based on cannabis being found in different parts of the house in the same search); accord Gonzalez v. State, 123 So. 3d 691, 692 (Fla. 4th DCA 2013).…
Authorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- State v. Florida, 894 So. 2d 941 (Fla. 2005)
- Leighton Binns v. State, 979 So. 2d 439 (Fla. 4th DCA 2008)
- Tommie v. Johnson, 712 So. 2d 380 (Fla. 1998)
- Latos v. State, 39 So. 3d 511 (Fla. 4th DCA 2010)
- Sims v. State, 793 So. 2d 1153 (Fla. 4th DCA 2001)
- Odom v. State, 104 So. 3d 1238 (Fla. 5th DCA 2012)
- Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012)
- Bradford B. Banks, Jr. v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012)