FREDDIE JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Freddie Jackson appeals his jury convictions for possession and sale of cocaine, each sentenced to five concurrent years. The appellate court affirmed the convictions but reversed the possession sentence because both charges arose from the same transaction and only the higher offense (sale) could be punished.
Jackson can only be sentenced for the higher offense (sale of cocaine) when two convictions stem from the same transaction or occurrence involving the same property. The sentence on the possession count must be reversed while the sentence on the sale count is affirmed.
[1] A mistrial is not warranted when defense counsel fails to object to testimony on direct examination and later elicits the same testimony on cross-examination.
[2] Testimony elicited by defense counsel on cross-examination may be relevant to prove the identity of a defendant.
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Join FLexlaw to unlock all legal intelligence“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”
States the core legal principle that when multiple convictions arise from the same transaction, only the highest offense may be punished.
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Join FLexlaw to unlock all legal intelligenceJackson was convicted by jury of both possession of cocaine and sale of cocaine based on evidence presented at trial. He was sentenced to five years o…
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JOHNSON, Acting Chief Judge.
Appellant seeks reversal of his conviction in a jury trial on charges of possession of cocaine and sale of cocaine, for which he was sentenced to five years on each count, the sentences to run concurrently.
We have considered appellant’s point of error regarding the denial of his motion for mistrial and find it to be without merit. Not only did appellant’s counsel fail to object to the complained of testimony on direct examination and then again solicit the same testimony on cross-examination, we feel that the elicited testimony was relevant to prove the fact of identity of the appellant by the State’s primary witness. Williams v. State, 110 So. 2d 654 (Fla.1959). In addition, we feel that the trial judge’s instruction to the jurors to disregard the statement cured any possibility of error in this regard.
However, as to the imposition of two concurrent sentences, we are required to reverse. It appears from the evidence that the cocaine which appellant was convicted of possessing was the same cocaine as that which he was convicted of selling. The convictions were based upon the same transaction 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 the appellant before the trial court for resentencing.
Affirmed in part and reversed in part.
BOYER and MILLS, JJ., concur.
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State v. Munford, 357 So. 2d 706 (Fla. 1978)…Second District, in Munford v. State, 343 So. 2d 67 (Fla. 2d DCA 1977), which is in direct conflict with the decisions of the District Court of Appeal, First District, in Montgomery v. State, 332 So. 2d 679 (Fla. 1st DCA 1976), and Jackson v. State, 311 So. 2d 811 (Fla. 1st DCA 1975). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. The sole issue before us is the legality of the sentence imposed on cross-petitioner by the trial judge. Cross-petitioner was adjudicated guilty…
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Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980)…n prison for each offense. The court, also without reference to section 775.021(4), held that Williams should have only been sentenced for the sale of the marijuana. In so holding, the court relied upon Drayton v. State, supra, and Jackson v. State, 311 So. 2d 811 (Fla. 1st DCA 1975). The Jackson decision was unquestionably grounded upon the pre-1977 common law version of the single transaction rule. Because we believe that the cases cited by the appellant in support of his position do not involve an applica…
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Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979)…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 S…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- Sinclair Johnson v. State, 260 So. 2d 212 (Fla. 1st DCA 1972)
- Dent v. State, 301 So. 2d 475 (Fla. 1st DCA 1974)