DOUGLAS LEVONNE WEST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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West appealed his conviction for possession of a controlled substance, challenging whether the trial court erred in denying his motion to require the state to elect which of two controlled substances (heroin or cocaine) it would rely upon for conviction. The court affirmed, holding that the state properly alleged the offense in the disjunctive under Florida criminal procedure rules since the crime and punishment are identical regardless of which substance was involved.
The trial court did not err. The amended information properly alleged the offense in the disjunctive under Florida Rule of Criminal Procedure 3.140(k)(5), and it provided West with sufficient notice of the charged offense because the crime and punishment are identical regardless of which controlled substance was involved. The state alleged and proved one offense arising from one criminal episode.
[1] An information may allege in the disjunctive or alternative two or more acts, means, intents, or results for an offense that may be committed in multiple ways.
[2] A criminal information alleging possession of a controlled substance may specify in the disjunctive multiple types of controlled substances if the offense and punishment…
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Join FLexlaw to unlock all legal intelligence“Alternative or Disjunctive Allegations. For an offense which may be committed by doing of one or more of several acts, or by one or more of several means, or with one or more of several intents or results, it is permissible to allege in the disjunctive or alternative such two or more acts, means, intents or results.”
States the governing Florida rule permitting disjunctive allegations in criminal informations
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Join FLexlaw to unlock all legal intelligenceWest was charged under an amended information with possession of a controlled substance in the form of four aluminum foil packets containing a white p…
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ERVIN, Chief Judge.
West appeals from a conviction for possession of a controlled substance. The only issue raised that merits discussion is whether the trial court erred in denying West’s motion, made after the state’s opening argument, for the state to elect which of two controlled substances it would rely upon for a conviction. We find no error and affirm.
The amended information charged West with possession of a controlled substance, “to wit: four (4) aluminum foil packets containing a white powder mixture of Heroin, Cocaine, or a combination thereof, in violation of Section 893.13(l)(e), Florida Statutes.” West’s argument that the amended information failed to give notice of the specific offense charged is unpersuasive. Florida Rule of Criminal Procedure 3.140(k)(5) states the following:
Alternative or Disjunctive Allegations. For an offense which may be committed by doing of one or more of several acts, or by one or more of several means, or with one or more of several intents or results, it is permissible to allege in the disjunctive or alternative such two or more acts, means, intents or results.
The offense described in Section 893.-13(l)(e), Florida Statutes, can be committed by doing one or more of several acts, including the act of possession of heroin or the act of possession of cocaine. Under rule 3.140(k)(5), then, an information may allege in the disjunctive or alternative such two or more acts. The instant amended information states in the disjunctive the controlled substance allegedly in West’s possession. It charges one defendant with one offense — unlawful possession of one controlled substance — arising out of one criminal episode. Whatever the controlled substance, the crime and the punishment are the same. The amended information therefore placed West on sufficient notice of the charged offense.
The instant case is distinguishable from those cases in which the state charged a single act in one count, but adduced proof of several acts. For example, in Adjmi v. State, 154 So. 2d 812 (Fla.1963), the information contained one count charging one act of grand larceny by false pretenses. At trial, the state proved fourteen separate transactions, each suggesting grand larceny by false pretenses. Id. at 813-814. The supreme court held that the trial court’s denial of defendant’s motion to elect was reversible error. Id. at 817. In Adjmi, a single act was charged in a single count, but the state later proved several different incidents or transactions upon which it relied for conviction. In the instant case, however, the state alleged one offense and proved one offense, a single incident of possession of a controlled substance. AFFIRMED.
BOOTH and WENTWORTH, JJ., concur.
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State v. Carmelo O. Mena, 471 So. 2d 1297 (Fla. 3d DCA 1985)…ing in cocaine can be committed.1’2 See State v. Rand, 231 So. 2d 31 (Fla. 3d DCA 1970). See also Young v. State, 439 So. 2d 306, 308 n.5 (Fla. 5th DCA 1983) (receded from in part in Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984)); West v. State, 456 So. 2d 946 (Fla. 1st DCA 1984). The cases relied upon by the court in dismissing the conspiracy count we find to be inapplicable in the present case. The conspiracy charges in Goldberg v. State, 351 So. 2d 332 (Fla.1977), and Battle v. State, 365 So. 2d 1035…
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