REIDEL E. ARMAS

v.

STATE

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

REIDEL EUGENIO ARMAS,

Appellant,

v. Case No. 5D17-1528

STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed June 29, 2018

Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.

James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

The issue that we resolve in this case is whether Appellant was placed in double jeopardy, in violation of the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution, when he was tried and convicted upon an information charging him with one count of possession of cannabis in an amount exceeding 20 grams with the intent to sell or deliver and a second count of manufacturing

The pertinent facts of this case are undisputed. During a single search of Appellant’s residence, law enforcement confiscated thirty-one cannabis plants from a bedroom and approximately one kilogram of finished, dried loose-leaf cannabis, packaged into six or seven plastic bags, inside a duffle bag located on the kitchen counter. Further, the cannabis found in the duffle bag came from the plants found in the bedroom. Appellant was convicted after trial of possession of cannabis with intent to sell, manufacture,1 or deliver and separately for manufacturing of cannabis.

Appellant argues that his dual convictions here violate double jeopardy principles because each “is predicated on indistinct conduct occurring during a single criminal episode” with the conduct being Appellant’s “possession of marijuana plants and packaged product.” The double jeopardy clauses of the federal and state constitutions prohibit the imposition of multiple punishments for the same criminal offense but do not prohibit multiple punishments for different offenses arising out of the same criminal transaction or episode if the Legislature intended to authorize separate punishments. Roughton v. State, 185 So. 3d 1207, 1209 (Fla. 2016) (citing Valdes v. State,³ So. 3d 1067, 1069 (Fla. 2009)). The Florida Legislature did so when it enacted section 775.021(4)(a), Florida Statutes (2015), which provides, in pertinent part, that a person

1 The record does not show that count one of the information was ever amended from possession of cannabis with intent to sell or deliver to possession with intent to sell, manufacture, or deliver. There is also no record explanation or indication why the word “manufacture” was included in the jury instruction and verdict form on this count. Nevertheless, this inclusion is not significant to our analysis.

2 Section 775.021(4)(a) is a codification of the “same elements” test enunciated in Blockburger v. United States, 284 U.S. 299 (1932), to determine whether a double jeopardy violation occurred. See Cruller v. State, 808 So. 2d 201, 203 (Fla. 2002). This test provides that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304.

3 The two crimes occurred when the defendant handed an undercover agent one piece of crack cocaine.

4 § 106.1439, Fla. Stat. (2004).

Accordingly, we hold that Appellant’s dual convictions, even though arising out of the same criminal transaction or episode and involving the same cannabis, do not violate the prohibition against double jeopardy. Additionally, none of the three exceptions contained in section 775.021(4)(b) is applicable here because neither of Appellant’s offenses is a lesser included offense of the other, they do not have identical elements of proof, and they are not degrees of the same offense.⁵

AFFIRMED.

COHEN, C.J., and BERGER, J., concur.

5 This exception under section 775.021(4)(b)2. prohibits a defendant from being punished for violating two or more degrees of the same offense as provided by statute. For example, the theft statute identifies three degrees of grand theft and two degrees of petit theft. See § 812.014, Fla. Stat. (2005). The homicide statute identifies three degrees of murder, see id. § 782.04, and the arson statute has two separate degrees. See id. § 806.01; see also Valdes,³ So. 3d at 1076 (quoting State v. Paul, 934 So. 2d 1167, 1177- 78 (Fla. 2006) (Cantero, J., concurring)).