SINCLAIR JOHNSON, ALIAS "CUZ", APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a portion of Johnson's sentence where the trial court imposed consecutive sentences for possession and sale of heroin arising from the same transaction. Following controlling precedent, the court held that when multiple counts stem from the same transaction, only one sentence may be imposed for the highest offense.
When an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed for the highest offense charged. The trial court erred in imposing separate consecutive sentences for possession and sale of heroin based on the same transaction.
[1] When the evidence of possession and sale of a narcotic drug involves the same transaction, separate consecutive sentences for sale and possession are precluded.
[2] In Florida, where multiple counts arise from the same transaction, only one sentence may be imposed, and it must be for the highest offense charged.
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Join FLexlaw to unlock all legal intelligence“In Florida, where an information contains more than one count, 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.”
Establishes the controlling legal principle from Yost v. State that limits sentencing when multiple counts arise from the same transaction
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Join FLexlaw to unlock all legal intelligenceOn September 20, 1970, Johnson was charged with possession of heroin (count one) and sale of heroin (count two) based on the same transaction. The tri…
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The appellant was charged by one count of an amended information with the possession of the narcotic drug heroin and by a second count with the sale of heroin, and has appealed from his judgment of conviction and sentence.
The principal question presented for our determination in this appeal is whether, when a defendant is convicted of possession and sale of a narcotic drug and the evidence of possession and sale involves the same transaction, the trial court is precluded from imposing separate consecutive sentences for the sale and the possession.
After the appellant was convicted of possession of heroin on September 20, 1970, under the first count of the said information and the sale of heroin on the same date under the second count, the trial court sentenced the appellant to four years imprisonment under each count, the sentences to run consecutively.
Our examination of the transcript of the trial testimony shows that the convictions under both counts were based upon the same transaction or occurrence.
In our opinion, this appeal is controlled by the recent decision of the District Court of Appeal, Third District of Florida, in Yost v. State, 243 So.2d 469 (Fla.App.1971), involving a substantially identical legal situation. In that case the defendant was charged in the first count with unlawful sale of marijuana on August 9, 1969; in the second count with unlawful sale of marijuana on August 12, 1969; in the third count with unlawful possession of marijuana on August 9, 1969 ; and in the fourth count with unlawful possession of marijuana on August 12, 1969. The evidence showed that the defendant made two sales of marijuana on August 9 and 12, 1969. Like in the present case, the marijuana allegedly possessed on the specified date was the same as sold on that date. Our sister court affirmed the convictions but remanded the cause for re-sentencing, saying:
“In Florida, where an information contains more than one count, 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.”
We think that the trial court’s error in imposing the subject sentences was com*213pounded by providing that the said sentences should run consecutively, instead of concurrently.
Upon the authority of the Yost case, supra, we reverse the sentence on the first (possession) count and affirm the sentence on the second (sale) count, without the necessity of bringing the appellant before the trial court for re-sentencing.
Affirmed in part and reversed in part, with directions.
SPECTOR, C. J., and WIGGINTON, J., concur.
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Jackson v. State, 311 So. 2d 811 (Fla. 1st DCA 1975)…on or occurrence. Hence, he was convicted of two facets or phases of the same transaction and could only be sentenced for the higher of such offenses; to wit: the sale of cocaine. Yost v. State, 243 So. 2d 469 (Fla.App. 3rd, 1971); Johnson v. State, 260 So. 2d 212 (Fla.App. 1st, 1972); and Dent v. State, 301 So. 2d 475 (Fla.App. 1st, 1974). Upon the authority of the above cited cases, we reverse the sentence on the possession count and affirm the sentence on the sale count, without the necessity of bringing…
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Robinson v. State, 325 So. 2d 427 (Fla. 1st DCA 1976)…fense charged. Yost v. State, 243 So. 2d 469 (Fla.App. 3rd 1971); Torres v. State, 262 So. 2d 458 (Fla.App. 3rd 1972). See also, Shaw v. State, 264 So. 2d 95 (Fla.App.lst 1972); Brown v. State, 264 So. 2d 28 (Fla.App. 1st 1972) and Johnson v. State, 260 So. 2d 212 (Fla.App. 1st 1972). Affirmed in part and reversed in part and remanded' for further action consistent with this opinion. MILLS, Acting C. J., and DREW (Ret.), Associate Judge, concur.…
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Chaires v. State, 265 So. 2d 529 (Fla. 1st DCA 1972)…is hereby declared to be invalid. The remainder of the sentence, that is, the remaining 2% years, is declared valid and therefore affirmed without the necessity of bringing the appellant before the trial court for resentencing. See Johnson v. State, 260 So. 2d 212 (Fla.App.). Affirmed in part and reversed in part. SPECTOR, C. J., and CARROLL, DONALD K. and WIGGINTON, JJ„ concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)