MORENA WILLIAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE; RAY ELLIS OSMAN, APPELLANT, V. THE STATE OF FLORIDA, APPELLEE
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Williams and Osman appealed their convictions for violating lottery laws following a non-jury trial. The appellate court affirmed their convictions on felony charges but reversed and remanded the sentencing on misdemeanor counts, finding those counts constituted the same transaction and could not be separately sentenced.
The court affirmed the convictions on felony charges and held that the search warrant was valid and met statutory requirements. However, the court held that Counts III, IV, and V represented the same transaction as the principal charges and could not be separately sentenced as misdemeanors, requiring remand for appropriate sentencing.
“These several counts charged violations of the lottery law which were separate facets of one transaction”
Establishes the court's rationale for why multiple counts should not be separately sentenced
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Join FLexlaw to unlock all legal intelligenceInformations were filed against Williams and Osman charging them with five counts related to lottery violations: operating a lottery, aiding in conduc…
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The appellants seek review of their convictions, adjudications and sentences, entered by the trial court pursuant to a non-jury trial on charges of violating certain lottery laws.
Informations were filed against both the appellants, charging them as follows: Count I — operating a lottery; Count II— aiding or assisting in conducting a lottery; Count III — possession of implements or devices for conducting a lottery; Count IV— possession of lottery tickets; Count V— aiding or assisting in sale, disposal or procurement of lottery tickets. The appellants moved to quash the affidavit for the search warrant; to quash the search warrant and suppress the evidence, which motions were denied by the trial court. The cause proceeded to a non-jury trial and, at the conclusion thereof, the trial court found Osman guilty of Counts I, III, IV and V; and found Williams guilty of Counts II, III, IV and V. Osman was sentenced to three years in the State penitentiary on Count I and one year in the County jail on each of Counts III, IV and V, to run concurrently with the sentence imposed on Count I. Williams was sentenced to one year in the County jail on each of Counts II, III, IV and V, the sentences on Counts III, IV and V to run concurrently with the sentence imposed on Count II. Appeal was taken from the convictions, adjudications and sentences. These appeals were consolidated in this court.
The appellants contend that the trial court erred in failing to quash the search warrant and suppress the evidence seized thereunder, on the grounds that fail*915ure of the affidavit to mention'the name of the person who occupied the premises searched [when such information was readily ascertainable] rendered the search warrant invalid. An examination of the affidavit and search warrant indicates they met the statutory requirements. See: Church v. State, 151 Fla. 24, 9 So.2d 164; Harvey v. Drake, Fla.1949, 40 So.2d 214; § 933.04, Fla.Stat, F.S.A.
The appellants also contend error in convicting Osman on the charge of operating a lottery, when the evidence as reflected by the record on appeal is insufficient to sustain the conviction. An examination of the record indicates competent, sufficient evidence to sustain the conviction and, therefore, same should not be disturbed on appeal. See: Crum v. State, Fla. App.1965, 172 So.2d 24; Devlin v. State, Fla.App.1965, 175 So.2d 82; Escobar v. State, Fla.App.1966, 181 So.2d 193.
The appellants also contend error in sentencing them on Counts III, IV and V of the Information, on the grounds that said counts are lesser included offenses of Counts I and II. This point appears to be well taken, not because they are separate offenses but because they are part of the same transaction. These several counts charged violations 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 appropriate sentence, in light of the principles announced in Williams v. State, supra; Sharon v. State, supra; Wells v. State, supra.
For the reasons above stated, the convictions, adjudications and sentences as to the felonies found against each of the appellants are hereby affirmed. But, the sentences as to the misdemeanor counts be and the same are hereby vacated and set aside, and this matter is returned to the trial court for further proceedings in accordance with the views expressed herein.
Affirmed in part; reversed in part, with directions.
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Cited By (14 total)
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Starling v. State, 263 So. 2d 645 (Fla. 3d DCA 1972)…312; Walden v. State, Fla.App.1966, 191 So. 2d 68. And, finding substantial competent evidence to support the trial judge’s finding of guilt, we are required to affirm. Tafero v. State, Fla.App.1969, 223 So. 2d 564; Williams v. State, Fla.App.1966, 187 So. 2d 913. Affirmed.…
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Sylvia v. State, 210 So. 2d 286 (Fla. 3d DCA 1968)…ufficient competent evidence to sustain the verdict and, therefore, with such in the record it is the duty of an appellate court not to disturb the verdict under review. Sharon v. State, Fla.App.1963, 156 So. 2d 677; Williams v. State, Fla.App.1966, 187 So. 2d 913; Richburg v. State, Fla.App.1967, 199 So. 2d 488. [*289] It is also urged that the trial court erred in failing to permit the evidence to be reopened after both parties had rested, upon motion by the defendants Beauchamp and Sylvia. This is another…
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Dreger v. State, 228 So. 2d 431 (Fla. 3d DCA 1969)…lden v. State, Fla.App.1966, 191 So. 2d 68; Shuler v. State, Fla. App.1968, 213 So. 2d 312. And, finding substantial competent evidence to support [*432] the trial judge’s finding of guilt, we are required to affirm. Williams v. State, Fla.App.1966, 187 So. 2d 913; Tafero v. State, Fla.App.1969, 223 So. 2d 564. Affirmed.…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Mixon v. State, 54 So.2d 190 (Fla. 1951)
- Sharon v. State, 156 So. 2d 677 (Fla. 3d DCA 1963)
- Williams v. State, 69 So. 2d 766 (Fla. 1953)
- Lou Church & J. D. Sawyer v. State, 151 Fla. 24 (Fla. 1942)
- Macon Tribue v. State, 106 So. 2d 630 (Fla. 2d DCA 1958)
- Wells v. State, 168 So. 2d 787 (Fla. 3d DCA 1964)
- Devlin v. State, 175 So. 2d 82 (Fla. 3d DCA 1965)
- Escobar v. State, 181 So. 2d 193 (Fla. 3d DCA 1965)
- Harvey v. Drake, 40 So. 2d 214 (Fla. 1949)