DENNIS SYLVESTER ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robinson was convicted by jury of possession and sale of heroin and sentenced to two concurrent 5-year terms. The appellate court affirmed the convictions but reversed the concurrent sentencing as to one count, holding that when multiple offenses arise from the same transaction, only one sentence for the highest offense should be imposed.
The trial court did not err in denying the continuance or in admitting the heroin evidence. However, the trial court erred in imposing concurrent sentences for both offenses arising from the same transaction; only one sentence for the highest offense should have been imposed.
[1] The granting or denial of a continuance is within the sound discretion of the trial court.
[2] A denial of a motion for a continuance based on a request for additional time to secure counsel is generally not an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“The granting of a continuance is within the discretion of the trial court.”
Establishes the standard for reviewing denial of continuance requests as discretionary matters.
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Join FLexlaw to unlock all legal intelligenceRobinson was arrested for possession and sale of heroin. Two defense attorneys represented him at trial, one of whom was a former state attorney who h…
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TENCH, BENJAMIN M., Associate Judge.
The parties will be referred to as in the Court below.
After trial by jury Defendant was convicted of possession and sale of heroin and sentenced to two concurrent 5-year terms in the Division of Corrections. He raises three points on appeal.
First, he contends that the trial court erred in denying him a continuance.
Defendant was represented by two members of the Bar, one of whom was a former state attorney who several months previously had signed the Information charging the Defendant and who had been retained to assist in representing him only on the morning of the trial. After the jury was sworn in, the trial court, was advised that Defendant did not want the services of his remaining counsel, who nevertheless announced that he was ready for trial. The record is silent as to any motion for continuance, with the exception of a reference to some conversation in chambers, but it reflects that there had been a delay of two weeks during which Defendant had opportunity to retain counsel acceptable to him. The trial court insisted the cause proceed.
The granting of a continuance is within the discretion of the trial court. Riggins v. State, 283 So. 2d 878 (Fla.App. 1st (1973); Robinson v. State, 256 So. 2d 29 (Fla.App. 3rd 1971). A denial of a motion for continuance based on a request for additional time to secure counsel has been held not to be an abuse of discretion. Fuller v. Wainwright, 268 So. 2d 431 (Fla.App. 4th 1972); Brown v. State, 224 So. 2d 789 (Fla.App. 3rd 1969). We hold the trial court committed no error. The Defendant’s second point on appeal is that the trial court erred in admitting in evidence a package containing the heroin which was the substance of the alleged violation. Defendant argues that because two officers had keys to the receptacle in which the arresting officer placed the heroin the chain of custody had been broken. He further argues that the State did not adequately negate the possibility of the exhibit to which he objects having been tampered with while in the custody of the forensic chemist. In each instance the State’s witness testified that there had been no tampering with the evidence, and each testified that when it left his possession it was in the same condition as when he received it. 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 presumption of regularity supports the official acts of public officers, and courts presume that they have properly discharged their official duties.
We hasten to add that while we do not find error, neither do we grant the imprimatur of our approval to the manner in which the State presented its case, which at best can only be referred to as loose.
Third, Defendant argues that it is error to sentence him to two concurrent 5-year sentences where he is charged with the crimes of unlawful possession and sale of narcotic drugs, which two offenses grow out of the same transaction and are based on the same facts. We agree. Where an information contains more than one count, but each is a part of the same transaction only one sentence should be imposed, and that sentence should be for the highest offense 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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Breakstone v. Honorable Mary Ann MacKENZIE, 561 So. 2d 1164 (Fla. 3d DCA 1989)…bias — that any such proper motivation was not the one which activated the particular contribution. Thus, the majority has taken the presumption of regularity and propriety, which is the foundation of our legal system, see, e.g., Robinson v. State, 325 So. 2d 427, 429 (Fla. IstDCA 1976); State v. Gillespie, 227 So. 2d 550, 555 (Fla. 2d DCA 1969), and which has heretofore applied even to lawyers, and turned it upside down and inside out into a conclusive presumption of impropriety. We cannot abide treating an…
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Rosalyn Ann Sanders v. State, 765 So. 2d 778 (Fla. 1st DCA 2000)…wn v. State, 652 So. 2d 877 (Fla. 5th DCA 1995). As to the continuance issue, we find no abuse of discretion in the trial court, after finding that defense counsel was prepared to go forward, refusing to grant a continuance. See Robinson v. State, 325 So. 2d 427 (Fla. 1st DCA 1976). Accordingly, we AFFIRM. BOOTH, MINER AND VAN NORTWICK, JJ., CONCUR.…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- Gallego v. United States, 276 F.2d 914 (9th Cir. 1960)
- Steinc v. State, 275 So. 2d 34 (Fla. 2d DCA 1973)
- Sinclair Johnson v. State, 260 So. 2d 212 (Fla. 1st DCA 1972)
- Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972)
- Stevens v. State, 245 So. 2d 92 (Fla. 1st DCA 1971)
- Riggins v. State, 283 So. 2d 878 (Fla. 1st DCA 1973)
- Robinson v. State, 256 So. 2d 29 (Fla. 3d DCA 1971)
- Fuller v. Louie L. Wainwright, 268 So. 2d 431 (Fla. 4th DCA 1972)
- Wilson v. State, 293 So. 2d 81 (Fla. 3d DCA 1974)