IRENE WELLS, CONSTANCE JACKSON, AND PEARLIE MAE REID, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Three appellants challenged their convictions for gambling law violations, specifically aiding in the operation of a lottery and possession of lottery tickets. The Florida District Court of Appeal affirmed the convictions but remanded for resentencing because the trial court improperly imposed separate sentences on a felony and misdemeanor that arose from a single transaction.
The trial court did not err in hearing the suppression motion during trial rather than before. The search was lawful and the motion to suppress was properly denied. Sufficient evidence supported the conviction. However, the court erred in imposing separate sentences on the felony and misdemeanor convictions arising from a single transaction; only one sentence should be imposed on the highest offense.
“There is no statutory or other requirement that such motion be heard prior to trial although it may be better practice to do so.”
Establishes that timing of suppression motion hearing is discretionary with the trial judge and not reversible error.
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Join FLexlaw to unlock all legal intelligenceAppellants Wells, Jackson, and Reid were convicted on count 2 (felony: aiding or assisting in setting up, promoting or conducting a lottery under § 84…
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The appellants seek reversal of convictions on counts 2 and 4 of an information charging them with gambling law violations. Count 2 alleges an offense under § 849.09(1) (d), Fla.Stat., F.S.A., aiding or assisting in the setting up, promoting or conducting of a lottery. Count 4 alleges an offense under § 849.09(1) (h), Fla.Stat., F.S.A., possession of lottery tickets. On this appeal we shall concern ourselves with the trial court’s failure to hear the appellant’s motion to suppress evidence prior to the trial on the merits, the trial court’s eventual denial of that motion, the sufficiency of the evidence to sustain the conviction under § 849.09(1) (d), supra, and the correctness of the imposition of sentence. We concern ourselves with the conviction under count 4 only with regard to the sentence imposed.
We fail to find reversible error in the trial court’s failure to hear appellant’s motion to suppress the evidence prior to the trial on the merits. There is no statutory or other requirement that such motion be heard prior to trial although it may be better practice to do so. The trial judge was acting as the trier of fact and chose to dispose of the motion during the course of the trial. The appellants have not demonstrated any prejudice resulting from such procedure.
Passing now to the court’s denial of appellants’ motion to suppress, we have examined the record pertaining to the search and conclude that the trial court’s action was proper. In addition, we have reviewed the entire record and find, as did the able trial judge, sufficient evidence to support the conviction. See Sharon v. State, Fla.App.1963, 156 So.2d 677, 679. No useful purpose would be served by delineating the evidence produced in support of the charges.
Turning to the sentences imposed, the record shows that the convictions on the two offenses were for a felony — count two, and a misdemeanor — count 4. Each count was a facet of a single transaction. Separate sentences were imposed on each count. It is established law in Florida that where convictions are entered on two offenses, each of which constitutes a facet of a single transaction, it is improper to impose sentence on each. Williams v. State, Fla.1953, 69 So.2d 766; Tribue v. State, Fla.1958, 106 So.2d 630; Sharon v. State, supra. In such a case, only one sentence should be imposed and that sentence should be on the highest offense charged. Sharon v. State, supra.
Accordingly, the judgment of conviction and sentence as to count 2 is affirmed; but inasmuch as the judgment and sentence on count 4 pertains to a misdemeanor, appellate jurisdiction lies only to the circuit court of Dade County, Florida, and we have no jurisdiction to review it, §§ 5 and 11, Article V, Constitution of Florida, F.S.A.; § 924.08, Fla.Stat, F.S. A, except to order a proper judgment or sentence by reason of the fact that misdemeanors and felonies are charged in different counts of the same information charging variations of only one offense. Williams v. State, supra.
*789The judgments and sentences as to count 2 (felony) are affirmed, but the cause is remanded to the trial court to impose a proper sentence as to count 4, not inconsistent with this opinion.
Affirmed with directions.
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Citator
Cited By (12 total)
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Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)…, but each is a facet or phase of the same transaction, only one sentence may be imposed; and the sentence which should be imposed is for the highest offense charged. See Williams v. State, Fla.1953, 69 So. 2d 766, 767; Wells v. State, Fla.App.1964, 168 So. 2d 787; and Wyche v. State, Fla.App. 1965, 178 So. 2d 875, 877 (fundamental error). In the case below, the defendant was charged as follows: Count I with unlawful sale of marijuana on August 9, 1969 and in Count III with unlawful possession of marijuana on…
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Edmond Wyche v. State, 178 So. 2d 875 (Fla. 2d DCA 1965)…an one count, but each is a facet or phase of the same transaction, there can be only one sentence imposed; and that sentence should be imposed on the highest offense charged. Williams v. State, Fla.1953, 69 So. 2d 766; Wells v. State, Fla.App.1964, 168 So. 2d 787; Sharon v. State, Fla.App.1963, 156 So. 2d 677; Trihue v. State, Fla.App.1958, 106 So. 2d 630. The counts in appellant’s information do charge facets of only a single transaction. Since it was, however, provided that the sentences should run concur…
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Morena Williams v. State, 187 So. 2d 913 (Fla. 3d DCA 1966)…olations of the lottery law which were separate facets of one transaction [see: Williams v. State, Fla.1953, 69 So. 2d 766; Tribue v. State, Fla.App.1958, 106 So. 2d 630; Sharon v. State, Fla.App. 1963, 156 So. 2d 677; Wells v. State, Fla.App. 1964, 168 So. 2d 787] and, as held in Mixon v. State, Fla.1951, 54 So. 2d 190, “did not charge separate and distinct offenses, but the same offense.” Therefore, the sentences as to these misdemeanors are set aside and this cause is remanded to the trial court for an app…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sharon v. State, 156 So. 2d 677 (Fla. 3d DCA 1963)
- Williams v. State, 69 So. 2d 766 (Fla. 1953)
- Macon Tribue v. State, 106 So. 2d 630 (Fla. 2d DCA 1958)