JASPER REEVES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Jasper Reeves appealed his convictions for possession and sale of cocaine, arguing the possession conviction violated double jeopardy as a lesser included offense of the sale charge. The court affirmed both convictions but reversed his habitual felony offender sentence, holding that the possession charge could not support such enhancement under Florida law.
The court affirmed both the possession and sale convictions, holding that possession is not a lesser included offense of sale because sale can occur without possession. However, the court reversed the habitual felony offender sentence because Florida law prohibits habitualization when the underlying felony involves possession or purchase of a controlled substance.
[1] A defendant may be convicted of both possession and sale of the same controlled substance when the sale could occur without possession, as possession is not an essential…
[2] Separate convictions for sale and possession of the same quantum of contraband do not violate the double jeopardy clause.
Previewing 2 of 3 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“possession of cocaine was not a lesser included offense of sale of cocaine and, therefore, defendant could be convicted of both possession and sale of the same quantum of cocaine pursuant to amended dual conviction statute, because situations exist where sale could occur without possession, so that possession was not essential element of crime”
Establishes the legal principle that possession and sale are separate crimes with distinct elements, permitting dual convictions.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn January 24, 1994, Reeves was charged with both possession and sale of cocaine arising from a single episode. He entered an open plea of nolo conten…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sale Of Controlled Substance cases and more on FLexlaw
POLEN, Judge.
Jasper Reeves appeals from a final judgment and sentence convicting him of both possession and sale of cocaine. He raises two points on appeal, one directed to his conviction, which we affirm, and the other directed to his habitual felony offender sentence, which we reverse.
Reeves entered an open plea of nolo con-tendere to charges of possession of cocaine and sale of cocaine which arose out of a single episode which occurred on January 24, 1994. Reeves now contends that his conviction for possession of cocaine cannot stand because it was the core offense which comprised the sale of cocaine, and as such violates the double jeopardy clause of the United States and Florida Constitutions. See Sirmons v. State, 634 So. 2d 153 (Fla.1994) (defendant could not be convicted separately for robbery with a weapon and grand theft because they were dual convictions based on the same core offense of theft); and Lundy v. State, 596 So. 2d 1167 (Fla. 4th DCA 1992) (double jeopardy clause prohibited convictions for trafficking in cocaine in a box and possession of cocaine in a bag in the passenger compartment of a car, as the element of possession is required for the proof of each crime).
The state cites several cases which we agree vitiate Reeves’s double jeopardy argument with regard to separate convictions for sale of a controlled substance and possession of that same controlled substance. See State v. McCloud, 577 So. 2d 939 (Fla.1991) (holding that possession of cocaine was not a lesser included offense of sale of cocaine and, therefore, defendant could be convicted of both possession and sale of the same quantum of cocaine pursuant to amended dual conviction statute,1 because situations exist where sale could occur without possession, so that possession was not essential element of crime); State v. Stenson, 587 So. 2d 1144 (Fla.1991) (separate conviction and sentence for both sale and possession with intent to sell the same quantum of contraband did not violate double jeopardy); State v. Robinson, 581 So. 2d 158 (Fla.1991) (defendant may be convicted of and sentenced for sale and possession of the same quantum of contraband). In accordance with the above case law, we affirm both the conviction for sale and possession of cocaine.
However, we do agree that it was illegal to sentence Reeves for possession of cocaine under the habitual felony offender statute, as that statute does not permit habit-ualization of a defendant where the felony for which the defendant is sentenced involves the possession or purchase of a controlled substance. § 775.084(1)(a)(3), Fla.Stat. (1993). See Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994) (.holding that habitual offender statute did not permit habitualization of defendant convicted of cocaine possession, even if the sentence was a result of a plea agreement). Accordingly, we reverse and remand for Reeves to be resentenced only on the possession of cocaine charge.
DELL and STONE, JJ., concur. .The statute to which the court is referring is section 775.021(4), which provides in pertinent part:
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Stubbs v. State, 676 So. 2d 532 (Fla. 4th DCA 1996)…endant’s judgment in all respects, and remand solely for correction of the sentence imposed as to count II. The state concedes, and we agree, the trial court erred in habitualizing the defendant on the possession of cocaine count. Reeves v. State, 659 So. 2d 1259 (Fla. 4th DCA 1995); § 775.084(l)(a)3, Fla. Stat. (1993). While this error may be harmless in light of the other sentences imposed, we remand for correction of defendant’s sentence as to count II, to avoid potential future adverse consequences as a…
-
Gainer v. State, 671 So. 2d 240 (Fla. 1st DCA 1996)…d sentences where “the felony for which the defendant is to be sentenced ... is not a violation of s. 893.13 relating [solely] to the purchase or the possession of a controlled substance.” [*243] § 775.084(1)(a)3., Fla.Stat. (1993); Reeves v. State, 659 So. 2d 1259 (Fla. 4th DCA 1995). While appellant’s concurrent sentence as a habitual felony offender for sale of cocaine (count I) was lawful, we reverse and remand for sentencing under the guidelines as to the conviction for possession of cocaine (count II).…
-
Dunbar v. State, 741 So. 2d 1197 (Fla. 4th DCA 1999)…ocaine. The state has filed a concession of error and we agree that the trial court committed error by sentencing appellant as a habitual offender for possession of cocaine. See Stubbs v. State, 676 So. 2d 532 (Fla. 4th DCA 1996); Reeves v. State, 659 So. 2d 1259 (Fla. 4th DCA 1995); § 775.084(1)(a) 3, Fla. Stat. (1993). As in Stubbs the error may be harmless when considered with the other sentence imposed but we remand for the trial court to correct the habitualization for possession of cocaine to avoid any…
Authorities Cited
- State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- Lundy v. State, 596 So. 2d 1167 (Fla. 4th DCA 1992)
- State v. Robinson, 581 So. 2d 158 (Fla. 1991)
- Perez v. State, 647 So. 2d 1007 (Fla. 3d DCA 1994)
- State v. Stenson, 587 So. 2d 1144 (Fla. 1991)