RONDELL L. SHIVERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rondell Shivers was convicted of possession of cannabis in county court, then prosecuted in circuit court for the felony offense of introducing contraband into a detention facility based on the same marijuana. The court held that successive prosecution for a greater offense after conviction of a lesser included offense violates the constitutional prohibition against double jeopardy.
The court held that prosecution and conviction of a lesser included offense bars successive prosecution of the greater offense. Possession of less than 20 grams of cannabis is a lesser included offense of introducing cannabis into a county detention facility, and therefore Shivers's felony conviction violated the double jeopardy clause.
[1] Prosecution and conviction of a lesser included offense bars a successive prosecution of the greater offense.
[2] Possession of less than 20 grams of cannabis is a lesser included offense of introduction of the same cannabis into a county detention facility.
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Join FLexlaw to unlock all legal intelligence“Florida case law is well settled that possession of less than 20 grams of cannabis is a category four lesser included offense of introduction of the same cannabis into a county detention facility.”
Establishes the legal relationship between the two offenses charged against Shivers
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Join FLexlaw to unlock all legal intelligenceOn January 25, 1991, Shivers was arrested for trespass after warning. During booking at the correctional facility, officers found marijuana in his sho…
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GOSHORN, Chief Judge.
The issue in this case concerns the constitutional prohibition against successive prosecution and punishment for the same offense.1
Rondell L. Shivers was arrested on January 25, 1991 for trespass after warning.2 When he was brought to the correctional facility for processing, the booking officer found marijuana in Shivers’s shoe. Shivers was promptly arrested for possession of cannabis.3
On February 14, 1991, the State charged Shivers by a two-count information filed in the circuit court with the felony crime of introduction or possession of contraband in a county detention facility4 and the lesser included misdemeanor crime of possession of cannabis. The following day, Shivers entered not guilty pleas to both counts of the information. On April 2, 1991, Shivers appeared in the county court, pled guilty to the original arrest charges of trespass after warning and possession of cannabis, and was sentenced to 6 months’ incarceration on each count, with each sentence to run concurrently.
On June 19, 1991, Shivers filed a motion to dismiss the circuit court charges alleging he had previously been placed in jeopardy when he pled and was sentenced in the county court. The State conceded that all of the cannabis charges arose from the January 25th arrest and involved the same quantity of marijuana. The circuit judge dismissed the misdemeanor possession charge, but when he refused to dismiss the felony contraband charge, Shivers entered a no contest plea and reserved his right to appeal. The circuit judge sentenced Shivers to 146 days in the Orange County jail.
Florida case law is well settled that possession of less than 20 grams of cannabis is a category four lesser included offense of introduction of the same cannabis into a county detention facility. Cooper v. State, 512 So. 2d 1071 (Fla. 1st DCA 1987); Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985); Dees v. State, 397 So. 2d 1145 (Fla. 2d DCA 1981). Furthermore, both federal and state case law provide that prosecution and conviction of a lesser included offense bars a successive prosecution of the greater offense. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Dees, 397 So. 2d at 1146. Accordingly, we reverse Shivers’s conviction and vacate his sentence on the felony contraband charge.5
Conviction REVERSED; sentence VACATED.
COBB and GRIFFIN, JJ., concur. . U.S. Const, amend. V.; Art. I, § 9, Fla. Const. . § 810.09, Fla.Stat. (1989).
. § 893.13(l)(f), Fla.Stat. (1989).
. § 951.22, Fla.Stat. (1989).
. A more interesting question, but one not preserved for appeal, is whether the State can meet its burden to prove that Shivers had the general intent to introduce contraband into a county detention facility when Shivers was involuntarily taken to the facility as a result of his arrest for trespass. See State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982).
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Citator
Cited By
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Turner v. State, 661 So. 2d 93 (Fla. 5th DCA 1995)…at the simple possession charge includes no element distinct from the charge of possession of contraband in the jail facility. The court concluded that double jeopardy principles barred Rozier’s conviction for both crimes. See also Shivers v. State, 593 So. 2d 318 (Fla. 5th DCA 1992). Accordingly, we reverse Turner’s conviction for possession of cocaine pursuant to section 893.13(6)(a) and vacate the sentence imposed for that crime. We affirm Turner’s conviction and sentence for possession or introduction of…
Authorities Cited
- Brown v. Ohio, 432 U.S. 161 (U.S. 1977)
- Grady v. Corbin, 495 U.S. 508 (U.S. 1990)
- State v. OXX, 417 So. 2d 287 (Fla. 5th DCA 1982)
- Cooper v. State, 512 So. 2d 1071 (Fla. 1st DCA 1987)
- Tessier v. State, 462 So. 2d 123 (Fla. 2d DCA 1985)
- Dees v. State, 397 So. 2d 1145 (Fla. 2d DCA 1981)