EZEKIEL PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ezekiel Peterson appeals his convictions for drug sale and possession of cocaine. The Fourth District Court of Appeal affirmed his convictions but reversed and remanded his sentence due to two errors: an unlawful guideline departure for probation and restitution center residency without proper written justification, and failure to advise Peterson of his right to contest public defender fees.
The court affirmed Peterson's convictions under both statutes, agreeing with prior First District precedent. However, the court reversed the sentence because the trial court imposed a guideline departure exceeding the permitted range without written justification, and imposed public defender fees without advising Peterson of his right to contest the amount.
[1] A defendant may not be convicted of both sale of cocaine and possession of the same cocaine under separate statutory provisions.
[2] Mandatory residency at a probation and restitution center, even as a condition of probation, constitutes incarceration for purposes of sentencing guidelines.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Mandatory residency at a probation and restitution center, even as a condition of probation, is "incarceration" within the meaning of the sentencing guidelines.”
Establishes that probation and restitution center residency is treated as incarceration for guideline calculations
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Join FLexlaw to unlock all legal intelligencePeterson sold a cocaine rock to an undercover officer, having obtained it from a codefendant who took it from a vial containing 32 cocaine rocks. Pete…
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PER CURIAM.
Appellant Ezekiel Peterson was convicted below of sale, delivery or possession with intent to sell or deliver cocaine under section 893.13(l)(a), Florida Statutes (1991). He was also found guilty of possession of cocaine under section 893.13(1)©, Florida Statutes (1991).1 The trial court adjudicated and sentenced Peterson for both offenses. The evidence at trial was that Peterson sold a cocaine rock to an undercover officer. He had obtained the rock from a codefendant who took it from a vial. After both men were arrested, the vial was seized. It contained 32 cocaine rocks.
Peterson argues that he may not be convicted under section 893.13(l)(a) and also under section 893.13(1)© for possession of the same quantity of cocaine.
We agree with the First District’s analysis of these two criminal statutes in St. Fabre v. State, 548 So. 2d 797 (Fla. 1st DCA 1989).
Therefore, we reject Peterson’s contention that the two judgments and sentences were error. Of the other points raised by Peterson, we find reversible error in two aspects of the sentence. At the sentencing hearing, Peterson’s guideline seoresheet permitted a sentence between 2½ and 5⅞ years incarceration. On the sale count, a second degree felony, Peterson was sentenced to 5⅜ years in the Department of Corrections to be followed by 3 years probation. In addition, Peterson was ordered to spend the first year of probation in a probation and restitution center. Mandatory residency at a probation and restitution center, even as a condition of probation, is “incarceration” within the meaning of the sentencing guidelines.2 See Solis v. State, 622 So. 2d 584 (Fla. 2d DCA 1993); Parker v. State, 636 So. 2d 794 (Fla. 1st DCA 1994).
Thus, Peterson’s sentence exceeded the permitted guideline sentence by one year. Contrary to Florida Rule of Criminal Procedure 3.701(d)(ll), there was no written statement delineating the reasons for the departure. From the record, the trial judge did not know that he had imposed a departure sentence. On remand, the resentencing shall be conducted pursuant to Roberts v. State, 547 So. 2d 129 (Fla.1989) and State v. Betancourt, 552 So. 2d 1107 (Fla.1989).
A second sentencing error was the imposition of $611 for public defender fees and costs. § 27.56, Fla.Stat. (1991). At the sentencing hearing, Peterson was not advised of his “right to a hearing to contest the amount of lien.” Fla.R.Crim.P. 3.720(d)(1). Merely advising a defendant of a right to appeal does not fulfill the notice requirement of rule 3.720(d)(1). On remand, Peterson shall be advised of his right to a hearing to contest the amount of the lien imposed. If he requests a hearing, one should be set pursuant to rule 3.720(d)(2).
GLICKSTEIN, KLEIN, JJ., and GROSS, ROBERT M., Associate Judge, concur. . The judgment of conviction signed by the trial court indicates conviction under section 893.13(l)(b) instead of section 893.13(l)(f). The information and the record below demonstrate that this was a clerical error. . In its supplemental brief, the state concedes this point.
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Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995)…to a hearing to contest the amount thereof. We remand with directions to advise defendant [*1317] of his right to a hearing and, if a hearing is requested, to set one pursuant to Florida Rule of Criminal Procedure 3.720(d)(1). See Peterson v. State, 645 So. 2d 1028 (Fla. 4th DCA 1994); Wright v. State, 654 So. 2d 252 (Fla. 1st DCA 1995); Buiey v. State, .583 So. 2d 384 (Fla. 1st DCA 1991). With regard to restitution, the prosecutor orally announced at sentencing a restitution amount of $120 plus $18. The tria…
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Paccione v. State, 698 So. 2d 252 (Fla. 1997)…e marijuana. On appeal, Paccione argued that the dual convictions violated his constitutional right not to be placed twice in jeopardy for the same criminal offense. The district court affirmed both convictions on the authority of Peterson v. State, 645 So. 2d 1028 (Fla. 4th DCA 1994), in which the Fourth District held that dual convictions for violation of section 893.13(l)(a), Florida Statutes (1991), and section 893.13(l)(f), Florida Statutes (1991),3 do not violate double jeopardy. The district court cert…1 / 2
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Gibbs v. State, 676 So. 2d 1001 (Fla. 4th DCA 1996)…la. 4th DCA 1992), we held that the Double Jeopardy Clause of the federal Constitution prohibited separate convictions and punishment for simple possession and trafficking possession of the same cocaine. More recently, however, in Peterson v. State, 645 So. 2d 1028 (Fla. 4th DCA 1994), we held that the defendant could be separately convicted and punished for possession with intent to sell and simple possession of the same drugs. Defendant in this case was arrested for driving on a suspended license. At the ti…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)
- Parker v. State, 636 So. 2d 794 (Fla. 1st DCA 1994)
- Camelien ST. Fabre v. State, 548 So. 2d 797 (Fla. 1st DCA 1989)
- Solis v. State, 622 So. 2d 584 (Fla. 2d DCA 1993)