HARRISON PORTERFIELD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Porterfield’s convictions and sentences for possession of cocaine in violation of § 893.13(l)(e), Fla.Stat. (1985) and sale of the same cocaine in violation of § 893.13(l)(a), Fla.Stat. (1985) are affirmed. Smith v. State, 430 So. 2d 448 (Fla.1983). But see Wheeler v. State, 549 So. 2d 687 (Fla. 1st DCA 1989) and questions certified therein.
AFFIRMED.
SMITH, THOMPSON and MINER, JJ., concur.
THOMPSON, Judge.
Porterfield filed a motion for rehearing, to certify question, and to certify conflict. In the motion he contends that the decision in this case conflicts with decisions on the same issue by two other district courts of appeal. We grant rehearing, certify conflict and certify the question of whether on the authority of Smith v. State, 430 So. 2d 448 (Fla.1983), a person may be convicted and sentenced for the possession of cocaine under § 893.13(l)(e), Fla.Stat. (1985), and the sale of the same cocaine under § 893.13(l)(a), Fla.Stat. (1985).
The decision in this case does conflict with the decisions in Choctaw v. State, 547 So. 2d 726 (Fla. 2d DCA, 1989); Kocol v. State, 546 So. 2d 1159 (Fla. 5th DCA, 1989); and Jelks v. State, 546 So. 2d 783 (Fla. 5th DCA, 1989).
In Choctaw, Kocol and Jelks, the courts found a double jeopardy violation although the offenses were set forth in separate subsections of the same statute. This case does not conflict with Wheeler v. State, 549 So. 2d 687 (Fla. 1st DCA 1989), in which this court held it was a double jeopardy violation to convict and sentence for both the sale and possession of the same substance when the offenses were set forth in the same subsection of the same statute. We think that because this case involves separate offenses and separate subsections of the statute, it is controlled by the decision of our supreme court in Smith v. State, 430 So. 2d 448 (Fla.1983).
This court’s position, as carefully considered and discussed in Wheeler, distinguishes between cases where the sentence and conviction is for both sale and possession under one subsection of the statute and cases involving sale and possession under two separate subsections of the same statute. We believe this position is the better reasoned one.
Accordingly, Porterfield’s convictions and sentences are affirmed.
Because of the conflict between this decision and the decisions of the Second and Fifth District Courts of Appeal, we certify to the Florida Supreme Court the following question:
Under the provisions of § 775.021(4)(b), Fla.Stat., may a person be convicted and sentenced for possession of cocaine in violation of § 893.13(l)(e), Fla.Stat. (1985) and sale of the same cocaine in violation of § 893.13(l)(a), Fla.Stat. (1985)? Smith v. State, 430 So. 2d 448 (Fla.1983).
SMITH and MINER, JJ., concur.
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State v. Hatten, 560 So. 2d 1172 (Fla. 1990)…utory elements and address different evils of legitimate legislative concern — one pertains to the possession of drugs by the individual without any particular intent and the other pertains to the sale or delivery of drugs. See Porterfield v. State, 553 So. 2d 186 (Fla. 1st DCA 1989); cf. Smith v. State, 430 So. 2d 448 (Fla.1983). The same analysis applies to Burton, where the offenses were delivery and simple possession. I would quash the DCA decision, order Hatten’s conviction and sentence for possession re…
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Harrison Porterfield v. State, 567 So. 2d 429 (Fla. 1990)…EHRLICH, Justice. We have for review Porterfield v. State, 553 So. 2d 186 (Fla. 1st DCA 1989), and Pollard v. State, 553 So. 2d 770 (Fla. 1st DCA 1989). We have jurisdiction. Art. V, §§ 3(b)(3), (4), Fla. Const. We quash the decisions of the First District Court of Appeal for the reasons stated in State v. Burton, 555 So.…1 / 2
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ST. Clair v. State, 575 So. 2d 243 (Fla. 2d DCA 1991)…ss several Carawan -window cases from the first district which took issue with the analysis in Gordon. The first district rejected the analysis of Gordon and decided, in Wheeler v. State, 549 So. 2d 687 (Fla. 1st DCA 1989), and Porterfield v. State, 553 So. 2d 186 (Fla. 1st DCA 1989), that one could be dually convicted and punished for the crimes of sale and simple possession because sale and simple possession were located in different subsections of section 893.13; but that such dual convictions and sentence…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wheeler v. State, 549 So. 2d 687 (Fla. 1st DCA 1989)
- Smith v. State, 430 So. 2d 448 (Fla. 1983)
- Kocol v. State, 546 So. 2d 1159 (Fla. 5th DCA 1989)
- Manual v. State, 547 So. 2d 726 (Fla. 2d DCA 1989)
- Jelks v. State, 546 So. 2d 783 (Fla. 5th DCA 1989)