Davis v. StateDavis v. State
Appellant argues that his separate convictions and sentences for the crime of possession of one rock of cocaine and for the crime of delivery of that same rock of cocaine violate his right to protection from double jeopardy provided by
[w]ith respect to cumulative sentences in a single trial, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
The dissenting opinion recognizes that Missouri v. Hunter forecloses relief to appellant based on the United States Constitution but urges that the Florida Supreme Court construe
The Florida Supreme Court specifically rejected this construction in State v. Cantrell, 417 So.2d 260 (Fla. 1982) in which it was asked by certified question whether
[W]e apply and construe
article I, section 9 of the Florida Constitution in the same manner that the United States Supreme Court applied thefifth amendment to the United States Constitution in Albernaz v. United States [450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)] ...
The Supreme Court did not recede from the holding, even though urged to do so, in either Carawan v. State, 515 So.2d 161 (Fla. 1987) or State v. Smith, 547 So.2d 613 (Fla. 1989).
What would be the basis for a more restrictive construction of the Florida Constitution? Since the language of the two provisions is almost identical,2 such interpretation would have to be based on a public policy argument. On the one occasion in recent years in which the citizens of this state had an opportunity to be heard
Although not specifically raised on appeal, the dissent also urges that the conviction and sentence for possession should be reversed based on legislative intent as expressed in
But consider an actual case, Daudt v. State, 368 So.2d 52 (Fla. 2nd DCA 1979) cert. denied, 376 So.2d 76 (Fla. 1979) in which the court found that a sale was accomplished without possession. In Daudt the defendant was convicted of sale and possession of marijuana. The defendant had, at the request of a prospective buyer (an undercover police officer), made a phone call to his “source” to obtain marijuana. Defendant and the undercover officer then drove to another location where they met “Mike“. The defendant assured “Mike” that the money was right and, at Mike‘s insistence, remained as a lookout while Mike took the officer to the location of the marijuana. The sale went down and the arrest was made.
The Daudt court held:
There is no evidence whatsoever that appellant ever had actual possession or control of the marijuana. Nor was constructive possession established. Although appellant knew of the presence of the marijuana, there is no evidence that it belonged to or was under the control of the appellant. At best, the evidence establishes that appellant brought the parties to the transaction together and expected to be paid for such service.
.....
Appellant aided and abetted [Mike] in selling the marijuana, but not in possessing it. [Mike] already possessed the marijuana; there is no showing that appellant was of any help to [Mike] in either acquiring it or retaining possession of it. On the contrary, appellant aided [Mike] in divesting himself of it.
It appears, therefore, that possession of cocaine is not a category three offense as set out in Brown v. State, 206 So.2d 377 (Fla. 1968) to the charged offense of sale or delivery of cocaine because possession is not “an essential ingredient” of the sale or delivery of cocaine.5 Sale or delivery of cocaine can occur without possession.
In analyzing whether possession is an “essential ingredient” of a sale of cocaine, why does it matter if appellant was charged as an aider or abettor or as the one who actually sold the contraband? In either event he is guilty of the sale, not aiding or abetting in the sale; therefore, one can be guilty of sale whether or not one has had possession. Thus possession, while present in almost all sales, is not an essential ingredient to the crime of sale of contraband. In considering whether something is an essential ingredient of the
We next must look to the information to see if possession would be a category four offense as defined by Brown. An offense is included within this category when the information charging the greater offense alleges a finding of the commission of the lesser offense. The count of the information charging sale or delivery of cocaine makes no reference to possession. See Portee v. State, 392 So.2d 314 (Fla. 2d DCA 1981) approved, 447 So.2d 219 (Fla. 1984). It appears, therefore, under the present law of this state, that
We acknowledge conflict with V.A.A. v. State, 561 So.2d 314 (Fla. 2d DCA 1990)
AFFIRMED.
PETERSON, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge, dissenting.
The basic issue is whether as to one instant of time and one quantum of contraband, a defendant can be convicted of both possession and sale or delivery. Decisions in this state can be divided time-wise, into three categories: (1) those decided before Carawan v. State, 515 So.2d 161 (Fla. 1987), (2) those decided after Carawan and before amendment, effective July 1, 1988, of
I would reverse defendant‘s conviction for the offense of possession of a controlled substance for several reasons.
(1) CONSTITUTIONAL DOUBLE JEOPARDY — HAS THE ENTIRE “IDENTITY OF OFFENSE” CONCEPT BEEN ABROGATED?
When the question is whether or not any particular two offenses are in substance the “same” within the meaning of the constitutional clauses prohibiting the government from twice placing a citizen in jeopardy for “the same offense” (the “constitutional law — double jeopardy — identity of offense” problem), the legal issue primarily involves a judicial construction and interpretation of the intent and meaning of the constitutional provision. This is true notwithstanding that problem incidentally requires a judicial analysis of technical constituent elements and inquiry into the purpose of each of the two offenses being compared, and the latter inquiry requires a judicial inquiry as to the intent of the legislature in enacting a particular statutory criminal offense.1 The relevant legislative intent is as to the socially harmful conduct (“evil“) which the statutory criminal offense was designed to punish and deter.
Recent United States Supreme Court cases2 are widely interpreted as indicating that the U.S. Supreme Court has limited or abdicated its historical role of interpreting the federal double jeopardy clause as a constitutional limitation on the government‘s authority to place a citizen twice in jeopardy for the same offense by holding (1) that the constitutional limitation against two trials for the same offense does not apply to a single trial setting and (2) that the whole judicial problem of analyzing offenses to determine whether they are in substance and constitutional contemplation “the same offense” or two different offenses (the identity of offense problem) is not one of interpretation of the intent of the framers of the constitution but one of interpretation of the intent of the legislature — not only as to the purpose of each criminal statute — but as to whether the legislative intent was that a citizen could be charged, tried, convicted or punished for two offenses which are substantially “the same offense.” If this is a correct view, then the Florida Supreme Court should effectuate the constitutional double jeopardy rights of Florida citizens by continuing to treat the identity of offense problem as one of constitutional interpretation of the Florida Constitution.
During the last decade, the Florida Supreme Court, as well as the District Courts of Appeal, have worked diligently to better understand and apply the constitutional concept that every two criminal offenses are either “the same offense” within the meaning of the constitutional double jeopardy prohibition or they are substantively “different.” The judicial inquiry as to the true identity of an offense started with State v. Pinder, 375 So.2d 836 (Fla. 1979), includes leading cases such as Borges v. State, 415 So.2d 1265 (Fla. 1982) and Bell v. State, 437 So.2d 1057 (Fla. 1983) and has apparently concluded with Carawan v. State, 515 So.2d 161 (Fla. 1987). The cases have largely been concerned with a correct application of one analytic test for substantive “difference” which in effect holds that if both of the offenses are based on the same factual event and if each of the two offenses does not have at least one essential constituent element that the other offense does not have, the two offenses are “the same offense” and prosecution for both offenses violates the constitutional double jeopardy provision. This judicial search, from case to case, for a better understanding of the double jeopardy concept, for better methods of analysis, and for a more perfect application of the concept, should continue.
The future looks bleak for a continued judicial recognition that the constitution prohibits a citizen from being placed twice
The dissent of Justice Barkett in State v. Smith, 547 So.2d 613 (Fla. 1989) may mean that the present majority of the Florida Supreme Court will decline to accept this difficult responsibility.
(2) LEGISLATIVE INTENT — POSSESSION, DELIVERY AND SALE OF CONTRABAND — ONE, TWO, OR THREE OFFENSES?
If, in the present state of the law, the possession charge in this case in not to be reversed on constitutional double jeopardy grounds, then it should be reversed upon the basis of “statutory construction” and “legislative intent.”
Basically,
Standard Jury Instructions in Criminal Cases provide definitions of some of the terms used in the statutes:
(1) “Possess” means to have personal charge of, or to exercise the right of ownership, management or control over, the thing possessed. [The instruction goes on to differentiate and to define the legal concepts of actual and constructive possession.]
(2) “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. [This is also the statutory definition in
section 893.02(5), Florida Statutes .](3) “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.
Every time a person is in possession of a controlled substance (or any other tangible personalty) that possession may either continue in the possessor or it may terminate. Termination of possession can occur in only a limited number of ways: the termination of possession can be involuntary, such as when the possessor unintentionally loses the object or when another person takes possession by theft, robbery or confiscation. The termination of possession may be voluntary as when the possessor consumes the object possessed, or the possessor abandons possession or when the possessor engages in a transaction and intentionally transfers or delivers possession to another person. A voluntary intentional delivery or transfer of possession commonly occurs in three circumstances:
(a) when the possessor delivers possession for the purpose of a bailment such as when a principal, as bailor, delivers possession to an agent, as bailee, for some purpose.
(b) when the possessor transfers possession in order to make a gift of the possessed object, and
(c) when the possessor delivers possession to a recipient in exchange for something of value (in law called “consideration.“) This last type of delivery is, of course, a sale.
Possession means to exercise such a controlling dominion over an object as permits the possessor to use or consume the object or transfer possession to another person. Possession means having power and control over an object and having an intent to exercise that power. Constructive possession is merely knowing of the existence of an object and having, and intending to exercise, the power to obtain actual physical possession of the object. Delivery is a transaction in which a person with possession of an object transfers that possession to another person. Delivery is variously defined as a change of possession or the act by which the res is placed within the
As a practical matter and in correct legal contemplation of the essence of the terms and concepts, as to a single factual event (single act) involving one quantum of contraband, the offense of delivery is the offense of possession plus the element of a transfer of possession and the offense of a “sale” is the offense of “delivery” plus the element of consideration.
It is an enticing mental game to construct hypotheticals3 to argue that a sale can occur without a delivery or a delivery can occur without a possession. This is best done by using factual scenarios that obscure (a) the true nature of transactions, (b) the legal concept of constructive possession, or (c) a crime committed by several persons as co-perpetrators or in various agency relationships, in order to confuse an analysis of the elements of sale, delivery and possession and the true relationships between the concepts. The majority opinion‘s citation of Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979) is an example. Daudt was convicted of both sale and possession but on appeal his conviction of sale was upheld, but his conviction of possession was reversed. This was because Daudt was charged not as the actual perpetrator of the two crimes but only as an aider and abettor under
Of course, delivery and sale are usual “event” crimes that finally occur at a single moment of time while possession is a continuing offense. This causes a peculiar analytical problem. Almost all who sell or deliver drugs possess them for some period of time before the sale or delivery event and most who purchase drugs possess them for some period of time after the sale event. Therefore, conceivably, a possession charge could be carefully drafted to
In
Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
This statutory exception appears to have been intended to describe what has heretofore been the criminal law concept of “necessarily included lesser offenses”5 as that concept was originally explained in Brown v. State, 206 So.2d 377 (Fla. 1968) (category 3) and listed as a category 1 in a Schedule of Lesser Included Offenses adopted by the Florida Supreme Court as part of the Standard Jury Instructions in Criminal Cases6 and referred to in
The majority opinion relies on State v. Smith, 547 So.2d 613 (Fla. 1989), as authority for affirming. The only holding with stare decisis authority in that case was that the 1988 amendment to
Cases directly in point are V.A.A. v. State, 561 So.2d 314 (Fla. 2d DCA 1990) and State v. McCloud, 15 F.L.W. D723, 1990 WL 27954 (Fla. 2d DCA Mar. 14, 1990), in which the Second District relying on its decision in Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988), approved sub nom State v. Smith, 547 So.2d 613 (Fla. 1989), held that as to crimes occurring after July 1, 1988, (the effective date of
This court should follow Gordon v. State, V.A.A. v. State, and State v. McCloud and reverse the possession offense in this case.