JAMES WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Williams was convicted of possession and sale of marijuana for a single transaction with an informant. The court affirmed the convictions but reversed the sentencing, holding that defendant cannot be sentenced for both possession and sale of the same marijuana and must receive only the sentence for the more serious offense (sale).
The trial court did not commit prejudicial error in denying the motion to strike because the record shows no prejudice to defendant and the state's failure to disclose the reweighed amount was unavoidable. However, sentencing defendant to five years for both possession and sale of the same substance was error; defendant should receive only the sentence for the higher offense (sale).
[1] A trial court may deny a motion to strike testimony based on newly discovered information if the state demonstrates the information was unavailable earlier and its late d…
[2] A defendant is not prejudiced by the late disclosure of evidence if the evidence, even if disclosed earlier, would not have changed the outcome of the trial.
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Join FLexlaw to unlock all legal intelligence“A review of the entire record affirmatively shows defendant was not prejudiced.”
Court's finding that nondisclosure of reweighed marijuana amount caused no prejudicial error
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Join FLexlaw to unlock all legal intelligenceDefendant sold one baggie of marijuana to Eddie Walker, a police informant. Defendant was charged with both possession and sale of marijuana. Laborato…
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PER CURIAM.
Defendant seeks review of his conviction of possession and sale of marijuana. He contends that the trial court erred in denying his motion to strike testimony which the state had failed to disclose prior to trial and that the imposition of two concurrent five year sentences for sale and possession of marijuana was error. We affirm in part and reverse in part.
Defendant sold Eddie Walker, a police informant, one baggie of marijuana. Based on this one transaction, defendant was charged with 1) possession and 2) sale of marijuana.
The marijuana was analyzed and weighed several months before trial and the weight reported as 24 grams including stems, seeds and mature stalks. After this laboratory report was given to the defense in pretrial discovery, the Florida Supreme Court decided in Purifoy v. State, 359 So. 2d 446 (Fla.1978), that stems like stalks must be excluded in weighing marijuana under Section 893.02(2), Florida Statutes (1975). At trial, an expert testified that she had reweighed the marijuana that morning and it weighed 10.2 grams without seeds, stems or mature stalks. Defendant, who was not previously informed of the reweighing, claimed surprise and moved to strike the testimony. The state argued that it had only received the information that morning and would have provided it earlier had it been available. The court concluded that the state’s failure was unavoidable and denied defendant’s motion.
A review of the entire record affirmatively shows defendant was not prejudiced. Richardson v. State, 246 So. 2d 771 (Fla.1971), Dorsey v. State, 367 So. 2d 692 (Fla. 1st DCA 1979). In Dorsey, supra, the marijuana weighed 24.2 grams. The defendant argued that the state had failed to prove he possessed more than five grams of marijuana because the state had not distinguished between the prohibited and nonpro-hibited matter. The facts here are similar; as in Dorsey, supra, it is incredible that the prohibited matter would not exceed five grams. We find no prejudicial error and affirm the conviction.
Appellant’s second contention, that the imposition of two concurrent five-year sentences for sale and possession of marijuana was error, is correct. Appellant was charged with two violations of Section 893.-13, Florida Statutes (1977): (1) possession, and (2) sale of marijuana. He was convicted of both charges and sentenced to five years on each count, the sentences to run concurrently. The record shows that defendant was convicted for the sale and possession of the same substance. This was error. Defendant should be sentenced only for the higher of the two offenses, i. e., the sale. Drayton v. State, 372 So. 2d 983 (Fla. 3d DCA 1979), Jackson v. State, 311 So. 2d 811 (Fla. 1st DCA 1975).
We have considered all other points raised by the defendant and do not find them meritorious.
[*DCCCXXXVII] The judgment is affirmed; the sentence for possession is vacated.
ROBERT L. SMITH, Jr., Acting C. J., and BOOTH and SHIVERS, JJ., concur.
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Smith v. State, 430 So. 2d 448 (Fla. 1983)…ursuant to article V, section 3(b)(3), Florida Constitution, because the district court opinion, Smith v. State, 412 So. 2d 22 (Fla. 2d DCA 1982), acknowledges conflict with Drayton v. State, 372 So. 2d 983 (Fla. 3d DCA 1979), and Williams V. State, 377 So. 2d 755 (Fla. 1st DCA 1979), cert. denied, 385 So. 2d 762 (Fla.1980). The question is whether or not a person may be convicted and sentenced for possession of proscribed substances when he has been convicted and sentenced simultaneously for the sale of the…
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Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980)…allege any of the elements of possession. Therefore, the possession of marijuana in the case at bar, charged in count II, is not a category four lesser included offense of the charge in count I. The appellant relies heavily upon Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979), and Drayton v. State, 372 So. 2d 983 (Fla.3d DCA 1979). While those cases would at first appear to support his position, we are convinced that they involve an application of the single transaction rule as it existed prior to the…
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Portee v. State, 447 So. 2d 219 (Fla. 1984)…ion of the district court of appeal on the ground that it expressly and directly conflicts with a decision of another district court of appeal. The decision below, Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980), conflicts with Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979), cert. denied, 385 So. 2d 762 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Williams has been disapproved. Smith v. State, 430 So. 2d 448 (Fla.1983). [*220] Petitioner was charged with and convicted of both pos…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Purifoy v. State, 359 So. 2d 446 (Fla. 1978)
- Drayton v. State, 372 So. 2d 983 (Fla. 3d DCA 1979)
- Jackson v. State, 311 So. 2d 811 (Fla. 1st DCA 1975)
- Dorsey v. State, 367 So. 2d 692 (Fla. 1st DCA 1979)