HENRY ORANGE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Henry Orange was convicted of both sale and possession of a controlled substance arising from a single transaction. The Florida District Court of Appeal reversed the imposition of separate sentences, holding that when two drug offenses are facets of the same transaction—here, possession contemporaneous with sale—only one sentence for the highest offense should be imposed.
Separate sentences should not have been imposed. When a defendant is convicted of two crimes committed in a single transaction that are facets of the same transaction, sentence should be imposed only for the highest offense. Here, since sale is the higher offense, the sentence for possession is set aside.
[1] Separate sentences may be imposed for crimes committed in a single transaction.
[2] When multiple offenses arising from a single transaction are facets of the same transaction, sentence should be imposed only for the highest offense charged.
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Join FLexlaw to unlock all legal intelligence“However, when a defendant is convicted of two crimes committed in a single transaction and each of the crimes is a facet of the same transaction, it has been held repeatedly that sentence should be imposed for only one of the crimes, being that of the highest offense charged.”
Establishes the core legal principle that dual sentences are improper when offenses are facets of the same transaction
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Join FLexlaw to unlock all legal intelligenceOrange was convicted of both sale or delivery of a controlled substance and possession of a controlled substance. Separate sentences of three years im…
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CHARLES CARROLL, Associate Judge.
The appellant was convicted of the crime of sale or delivery of a controlled substance in violation of § 893.13(1) (b) Fla. Stat., F.S.A., and the crime of possession of a controlled substance in violation of § 893.13(1) (e). Separate sentences of three years imprisonment were imposed for the two offenses, with provision for the sentences to be served concurrently. The defendant appealed, and contends the court erred by imposing two sentences.
Separate sentences can be imposed for crimes committed in a single transaction. Steele v. Mayo, Fla.1954, 72 So. 2d 386 (grand larceny and breaking and entering with intent to commit grand larceny) ; Norwood v. Mayo, Fla.1954, 74 So. 2d 370 (the forging and the uttering of a forged instrument); Slater v. State, Fla.1975, 316 So. 2d 539 (murder and robbery) ; Estevez v. State, Fla.1975, 313 So. 2d 692 (breaking and entering with intent to commit grand larceny, and grand larceny); Jenkins v. Wainwright, Fla.1975, 322 So. 2d 477 (separate offenses of possession of a controlled substance).
However, when a defendant is convicted of two crimes committed in a single transaction and each of the crimes is a facet of the same transaction, it has been held repeatedly that sentence should be imposed for only one of the crimes, being that of the highest offense charged. The latter principle was applied in a number of cases involving convictions of two or more offenses in violation of the lottery law which were regarded to be facets of one transaction. See Mixon v. State, Fla.1951, 54 So. 2d 190; Williams v. State, Fla. 1953, 69 So. 2d 766; Wheeler v. State, Fla.1954, 72 So. 2d 364; Norwood v. State, Fla.1956, 86 So. 2d 427; Trihue v. State, Fla.App. 1958, 106 So. 2d 630; Sharon v. State, Fla.App.1963, 156 So. 2d 677; Wells v. State, Fla.App.1964, 168 So. 2d 787.
The principle also has been applied repeatedly in cases similar to the instant case, where defendant has been convicted of sale of a controlled substance and also of possession of the controlled substance, as a result of a transaction where the possession of which the defendant was accused was that which was incident to the delivery of possession made simultaneously or contemporaneously with the sale. Yost v. State, Fla.App.1971, 243 So. 2d 469; Easton v. State, Fla.App.1971, 250 So. 2d 294; Martin v. State, Fla.App.1971, 251 So. 2d 283; Torres v. State, Fla.App. 1972, 262 So. 2d 458; Brown v. State, Fla.App.1972, 264 So. 2d 28; Gonzales v. State, Fla.App. 1972, 268 So. 2d 552; Kwasniewski v. State, Fla.App.1974, 303 So. 2d 373. The lone case to the contrary in such situation is Parker v. State, Fla.App. 1970, 237 So. 2d 253, decided by the First District Court of Appeal. However, in a later case, Martin v. State, supra, the First District Court of •Appeal on this point held in accordance with Yost v. State, supra, and other cases cited above dealing with the subject.
In cases decided recently by the Supreme Court (Slater, Estevez, and Jenkins), upholding convictions and sentences for separate offenses committed in one transaction the offenses did not appear to be, or were held not to be facets of the same transaction. It is not clear whether by those decisions it was intended to overrule Yost and the cases following Yost. We are inclined to follow Yost and the other cases, holding sale, and possession contemporaneously with the sale, are facets of the same transaction, in the absence of a definitive ruling by the Supreme Court rejecting those cases.
Lending support to this holding is the circumstance that the offenses involved here are not made crimes by separate statutes, both being provided for in subsection (1) (a) of § 893.13 Fla.Stat, F.S.A. On the convictions for the two crimes in this case only one sentence should have been imposed. Since the sale of the controlled substance represented the higher of the crimes charged, the sentence imposed for the conviction of possession is hereby set aside. In other respects the judgment is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bass v. State, 380 So. 2d 1181 (Fla. 5th DCA 1980)…1977), involved possession of a controlled substance with intent to deliver, and delivery of a controlled substance. The court held that Count II would be set aside because both crimes were a facet of the same transaction. See also Orange v. State, 334 So. 2d 277 (Fla. 3d DCA 1976). [*1183] In the Williams and Orange cases, supra, the acts were committed together, there was no separation in time. Each crime was part and parcel of the other. In the case before this court, defendant forced the victim to commit…
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Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980)…pisode, and the sentencing judge may order the sentences to be served concurrently or consecutively. Prior to the enactment of this section the single transaction rule as applied in the courts of this state was succinctly stated in Orange v. State, 334 So. 2d 277 (Fla.3d DCA 1976), as follows: [ Wjhen a defendant is convicted of two crimes committed in a single transaction and each of the crimes is a facet of the same transaction, it has been held repeatedly that sentence should be imposed for only one of t…
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Drayton v. State, 372 So. 2d 983 (Fla. 3d DCA 1979)…ly. The record shows that appellant was convicted for the sale and possession of the same substance. This was improper. See, e. g., Yost v. Wright, 360 So. 2d 1309 (Fla.3d DCA 1971); Wright v. State, 348 So. 2d 633 (Fla.3d DCA); and Orange v. State, 334 So. 2d 277 (Fla.3d DCA 1976). Accordingly, the sentences imposed are reversed, and the cause is remanded for proper sentencing in the light of this opinion. Affirmed in part, reversed in part, and remanded with directions.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (22 total)
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- Darius Slater v. State, 316 So. 2d 539 (Fla. 1975)
- Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)
- Jenkins v. Louie L. Wainwright, 322 So. 2d 477 (Fla. 1975)
- Mixon v. State, 54 So.2d 190 (Fla. 1951)
- Sharon v. State, 156 So. 2d 677 (Fla. 3d DCA 1963)
- Williams v. State, 69 So. 2d 766 (Fla. 1953)
- Macon Tribue v. State, 106 So. 2d 630 (Fla. 2d DCA 1958)
- Steele v. Mayo, 72 So. 2d 386 (Fla. 1954)
- Easton v. State, 250 So. 2d 294 (Fla. 2d DCA 1971)