MOSES RUDOLPH WILSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Moses Rudolph Wilson was convicted by jury of unlawful sale and unlawful possession of heroin and sentenced to 18 months concurrent on each count. On appeal, Wilson challenged the admission of physical evidence, the conviction on both counts from a single transaction, and alleged prosecutorial misconduct during voir dire. The court affirmed the convictions but modified the sentence to impose only the sentence for the highest offense (sale), striking the possession sentence.
The court held that: (1) the heroin was properly admitted under the rule in Bernard v. State; (2) while conviction on both counts was permissible, only one sentence can be imposed and it must be for the highest offense charged; and (3) the prosecutorial comment did not constitute reversible error because curative instructions were given and the defendant actually testified.
[1] A chain of custody is sufficiently established for the admission of physical evidence if no error is demonstrated regarding its admission.
[2] A defendant may not be convicted of both sale and possession of a controlled substance arising from a single transaction; however, a sentence may be imposed for the highe…
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Join FLexlaw to unlock all legal intelligence“only one sentence can be imposed and the sentence should be for the highest offense charged”
Establishes the controlling rule for sentencing when defendant is convicted on multiple counts arising from a single transaction
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Join FLexlaw to unlock all legal intelligenceWilson was tried by jury and convicted of unlawful sale of heroin and unlawful possession of heroin. The trial court sentenced him to eighteen months …
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PER CURIAM.
The appellant was informed against, tried by a jury, and convicted of the unlawful sale of heroin and the unlawful possession of heroin.
The trial court sentenced him to eighteen months in the state penitentiary on each count; the sentences were to run concurrently. On this appeal, three points are urged for reversal.
First, the appellant asserts that the physical evidence, i. e., the heroin sold, was improperly admitted into evidence because a proper chain of custody was not established.
Second, the appellant contends that the trial court erred in adjudicating him guilty of both sale and possession when the charges arose out of a single transaction.
Third, the appellant argues that the trial court erred in denying defense counsel’s motion for a mistrial upon the basis of a claimed prejudicial comment made by the prosecutor during voir dire of the jury.
Upon consideration of each of the points presented, we hold as follows.
First, no error was demonstrated as to the admission of the packets of heroin into evidence under authority of the rule set forth in Bernard v. State, Fla.App.1973, 275 So. 2d 34.
Second, it appears that there was no error in the adjudication that the appellant was guilty under both counts of the information; however, only one sentence can be imposed and the sentence should be for the highest offense charged. See Mendez v. State, Fla.App. 1973, 280 So. 2d 525.
Therefore, we will amend the sentence by striking therefrom the sentence upon count two which was for the possession of heroin.
Third, we conclude that the error urged by appellant relating to the comment of the prosecuting attorney does not present reversible error under the facts revealed by this record. Appellant urges that the comment was such that an inference of guilt might arise if the defendant did not take the stand. Although no curative instruction was requested by the defendant, both defense counsel and the court told the jury that there was no inference against, the defendant if he chose not to testify. In fact the defendant did testify.
We hold that there was no prejudicial error. Cf. United States v. Truitt, 440 F. 2d 1070 (5th Cir. 1971).
The sentence upon the second count is reversed and the judgment on both counts is affirmed. The sentence on the first count is affirmed.
Affirmed in part and reversed in part.
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Robinson v. State, 325 So. 2d 427 (Fla. 1st DCA 1976)…In the face of such testimony, which was not shaken on vigorous cross-examination, we hold the trial court committed no error. Stevens v. State, 245 So. 2d 92 (Fla.App. 1st 1971); Bernard v. State, 275 So. 2d 34 (Fla.App. 3rd 1973); Wilson v. State, 293 So. 2d 81 (Fla.App. 3rd 1974). The federal courts have spoken upon this matter and support our view. In Gallego v. United States, 276 F. 2d 914 (9th Cir.1960), the court adopted the rule that where no evidence indicating otherwise is produced, the presumptio…
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Rosa v. State, 696 So. 2d 1299 (Fla. 3d DCA 1997)…chose not to testify, they could not hold it against him. Examined in that context we do not think the prosecutor’s response to a potential juror’s statement can fairly be viewed as a comment on a defendant’s failure to testify. See Wilson v. State, 293 So. 2d 81, 82 (Fla. 3d DCA 1974). Defendant relies on Varona v. State, 674 So. 2d 823, 825 (Fla. 4th DCA 1996), and Harrell v. State, 647 So. 2d 1016, 1017 (Fla. 4th DCA 1994), but those cases are factually distinguishable. In Varona, the prosecutor told the…
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Buggs v. State, 268 So. 3d 878 (Fla. 2d DCA 2019)…ornton v. State, 306 So. 2d 205, 206 (Fla. 1st DCA 1975) (holding that possession of dangerous drugs charge was but another facet of delivery charge and thus sentence could be imposed only on delivery charge as the highest offense); Wilson v. State, 293 So. 2d 81, 82 (Fla. 3d [DCA] 1974) (holding there was no error in adjudication that defendant was guilty under both counts of information which charged the sale and possession of heroin, but only one sentence could be imposed and sentence should be for the hi…1 / 2
Authorities Cited
- Steinc v. State, 275 So. 2d 34 (Fla. 2d DCA 1973)
- United States v. Alben Wm. Barkley Truitt, 440 F.2d 1070 (5th Cir. 1971)
- Mendez v. State, 280 So. 2d 525 (Fla. 3d DCA 1973)