STEPHEN FUNDAK, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Fundak was convicted by jury of two marijuana offenses arising from a single criminal episode: sale and possession of marijuana. The trial court entered a single judgment and sentence without specifying which conviction it applied to, which the appellate court held was improper and required reversal for separate sentencing on each count.
A single judgment and sentence is improper when a defendant is convicted of two or more separate crimes. Under Florida Statutes section 775.021, separate judgments and sentences must be imposed for each conviction, even when the charges arise from a single transaction, unless one charge is a lesser-included offense of the other.
[1] A single judgment and sentence upon a defendant lawfully found guilty of two or more separate crimes is improper.
[2] Where multiple counts arise from a single criminal episode, only one sentence may be imposed, for the highest offense charged and convicted.
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Join FLexlaw to unlock all legal intelligence“The imposition of a single judgment and sentence upon a defendant lawfully found guilty of two or more separate crimes is improper.”
Establishes the core holding that single judgments/sentences are impermissible for multiple convictions
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Join FLexlaw to unlock all legal intelligenceFundak was charged under a two-count information with sale and possession of marijuana in violation of Florida Statutes sections 893.13(l)(a) and 893.…
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OTT, Judge.
Under a two-count information appellant, Stephen Fundak, was charged and convicted of sale and possession of marijuana in violation of Section 893.13(l)(a), Florida Statutes (1977) and Section 893.13(l)(e), Florida Statutes (1977), respectively.
After hearing the evidence the jury returned a guilty verdict on each count. The trial judge, however, entered a single judgment and sentenced appellant to one year in prison without specifying whether on one or both of the convictions. Appellant contends that the sentence is an impermissible general sentence. We agree.
The imposition of a single judgment and sentence upon a defendant lawfully found guilty of two or more separate crimes is improper. See Dorfman v. State, 351 So. 2d 954 (Fla.1977); Darden v. State, 306 So. 2d 581 (Fla. 2d DCA 1975); Darden v. State, 330 So. 2d 750 (Fla. 2d DCA 1976).
The charges lodged against appellant arose out of a single criminal episode in which he possessed and sold a single marijuana cigarette to a police officer. The general rule is that a defendant may properly be charged and tried on multiple counts arising out of a true single episode or transaction, but only one sentence is properly imposed — for the highest offense for which the defendant is charged and convicted. This is another way of saying that where an information contains more than one count but each count represented a facet or phase of the same transaction only one sentence may be imposed and the sentence to be imposed is for the highest offense charged. Cone v. State, 285 So. 2d 12 (Fla.1973); Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971).
In Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975), the supreme court held that multiple sentences were proper where the petitioner had possession of two separate drug substances each of which constituted in and of itself a separate violation of law. This rule has now been further modified by Section 775.021, Florida Statutes (1977).
We hold that Section 775.021 applies to the situation sub judice, requiring a judgment and sentence to be imposed upon each criminal charge and conviction.1 Therefore judgments of guilt as to both the sale and possession charges are affirmed but the case is remanded for the entry of a separate judgment and sentence on each conviction.
BOARDMAN, C. J., and RYDER, J., concur. . Section 775.021, Fla.Stat. (1977) requires separate sentencing for violation of two or more criminal statutes in the course of one transaction, excluding lesser included offenses. It would apply to the facts in the instant case because possession of marijuana was not a lesser included offense of sale of marijuana based upon the allegations in the information. Additionally, each of the two counts can be considered as arising out of a different statute because § 893.13(l)(a), Fla.Stat. (1977) and § 893.13(l)(e), Fla.Stat. (1977) are not interdependent. Each can be read to stand alone as a separate criminal violation.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Daudt v. State, 368 So. 2d 52 (Fla. 2d DCA 1979)…sentence which is no longer proper and may not be imposed by the trial court. Dorfman v. State, 351 So. 2d 954 (Fla. 1977); Darden v. State, 306 So. 2d 581 (Fla. 2d DCA 1975); Darden v. State, 330 So. 2d 750 (Fla. 2d DCA 1976); see Fundak v. State, 362 So. 2d 295 (Fla. 2d DCA 1978).…
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Smith v. State, 430 So. 2d 448 (Fla. 1983)…nse charged.” Id. at 471. In Williams v. State the First District Court of Appeal also found error in convicting a person for both the sale and the possession of the same substance. Conversely, the Second District Court of Appeal in Fundak v. State, 362 So. 2d 295 (Fla. 2d DCA 1978), citing section 775.021, Florida Statutes (1977), ruled that it is proper to impose sentences for both possession and sale.1 Neither the first district nor the third district has cited this section in their opinions. In Borges v.…
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Borges v. State, 394 So. 2d 1046 (Fla. 4th DCA 1981)…e appears to have received a blessing from the Supreme Court of the United States in an opinion issued after the appellant’s brief was filed. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Also see Fundak v. State, 362 So. 2d 295 (Fla. 2d DCA 1978). However, our own Supreme Court very recently decided in White v. State, 377 So. 2d 1149 (FIa.1979) that one convicted of robbery and the display of a firearm during the commission of that same robbery cannot be sentenced for both…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Jenkins v. Louie L. Wainwright, 322 So. 2d 477 (Fla. 1975)
- Darden v. State, 306 So. 2d 581 (Fla. 2d DCA 1975)
- Darden v. State, 330 So. 2d 750 (Fla. 2d DCA 1976)
- Budget Invs., Ltd. v. Minnehoma Fin. Co., 330 So. 2d 750 (Fla. 2d DCA 1976)