PHILLIP FRANKLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Franklin was convicted of drug possession charges in two consolidated cases and sentenced to three years imprisonment. The court reversed and remanded one case, finding the trial court erred by sentencing him under a misdemeanor count when a related felony count was also at issue, and directed the court to adjudge him guilty of the felony and sentence accordingly.
The court held that Count II charged only a misdemeanor of the first degree under Florida law and the felony sentence was erroneous. The trial court should have adjudged Franklin guilty of the felony Count I and sentenced him under that count, applying the single transaction rule to avoid double sentencing for the same criminal act.
[1] A charge of possession of cannabis with intent to sell is a felony only if the cannabis is described or named in § 893.03(l)(c), Florida Statutes.
[2] Possession or delivery without consideration of not more than 5 grams of cannabis constitutes a misdemeanor of the first degree.
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Join FLexlaw to unlock all legal intelligence“if the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree”
Establishes the statutory exception that makes Count II a misdemeanor rather than a felony
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Join FLexlaw to unlock all legal intelligenceIn Case No. BB-343, Franklin was charged with possession of more than five grams of cannabis (Count I, felony) and unlawful possession with intent to …
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McCORD, Judge.
The above two cases have been consolidated. In Case No. BB-343 appellant was charged in a two count information with “possession of more than five (5) grams of Cannabis” in Count I and that he did “unlawfully possess with intent to sell cannabis” in Count II. He was found guilty by jury of both counts, adjudged guilty of Count II and sentenced to three years imprisonment with credit for 34 days jail time served. No adjudication has been made under Count I.
In Case No. BB-428, appellant pled nolo contendere to an information charging him with sale of marijuana. He was adjudged guilty and sentenced to three years’ imprisonment to run concurrently with the sentence imposed in Case No. BB-343. These appeals are from the judgments and sentences in the two cases.
Appellant contends that the trial court erred in sentencing him to three years less jail time (a felony sentence), under Count II of the information in Case No. BB-343 because that count only charged a misdemeanor. He is correct. § 893.-13(1)(a), Florida Statutes (1975), provides that it is unlawful to possess with intent to sell a controlled substance and provides that if the controlled substance is named or described in § 893.03(l)(c) [which includes cannabis], the possessor with intent to sell is guilty of a felony. But paragraph (f) of § 893.13(1) provides that “if the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, . . . ” Here Count II of the information did not charge possession of more than five grams of cannabis. Thus, it only charged a misdemeanor of the first degree.
As stated above, although the jury found appellant guilty of Count I, a felony, the court has not adjudged him guilty of Count I. We surmise that such was not done because both counts involve a phase or facet of the same criminal act and to sentence defendant under both counts would violate the single transaction rule. He should be adjudged guilty of Count I and sentenced for the highest of the two offenses — Count I. See Cone v. State, 285 So. 2d 12 (Fla.1973).
We have examined the remaining points raised by appellant on the two appeals and find them to be without merit.
The judgment and sentence in Case No. BB-428 is affirmed and Case No. BB-343 is reversed with directions to vacate the sentence imposed under Count II and to adjudge appellant guilty of the felony stated in Count I and impose sentence under Count I.
RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.
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State v. Mandell C. McGEE, 494 So. 2d 255 (Fla. 2d DCA 1986)…ation for lack of jurisdiction because it charged defendant with possession of cannabis with intent to sell but did not specify an amount of twenty grams or more, thus was only a misdemeanor. We reverse. The trial court relied on Franklin v. State, 346 So. 2d 137 (Fla. 1st DCA 1977), which blended together sections 893.-13(1)(a), 893.03(1)(c), and 893.13(l)(f) of the Florida Statutes (1975), to determine that one who possesses cannabis with intent to sell less than the threshold amount [in 1977, five grams,…
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C.P. v. State, 505 So. 2d 616 (Fla. 3d DCA 1987)…ching this conclusion, we follow State v. McGee, 494 So. 2d 255 (Fla. 2d DCA 1986) and State v. McDaniel, (Fla. 2d DCA Case no. 86-1355, opinion filed, February 25, 1987) [12 FLW 658], rather than the directly contrary decision of Franklin v. State, 346 So. 2d 137 (Fla. [*617] 1st DCA 1977), with which we acknowledge a direct conflict. Affirmed in part, reversed in part.…
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State v. McDANIEL, 508 So. 2d 371 (Fla. 2d DCA 1987)…lorida Statutes (1985). Neither count of the information specified the amount of cannabis involved and did not specifically mention consideration. The defendant, relying on State v. Johnson, 354 So. 2d 902 (Fla. 1st DCA 1978), and Franklin v. State, 346 So. 2d 137 (Fla. 1st DCA 1977), filed a motion to dismiss the information on the ground that the trial court lacked subject matter jurisdiction because the information did not allege a felony. Although the trial judge disagreed with the holdings in Johnson and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cone v. State, 285 So. 2d 12 (Fla. 1973)