Appellant, David Griffin, appeals from a criminal judgment, claiming that the court’s disposition resulted in a double jeopardy violation. When the double jeopardy issue was brought to the court’s attention, the court vacated the adjudication and did not sentence on one count, thus eliminating any violation. We therefore affirm.
Appellant was charged by information with trafficking in oxycodone (count I), possession of an electronic weapon by a convicted felon (count II), introducing contraband into a detention facility (count III), possession of hydromorphone (count IV), possession of cocaine (count V), and possession of alprazolam (count VI). The charges arose out of an incident in which appellant allegedly concealed a bag of various contraband in his sock when he was taken to the intake center for the Broward County Detention Facility.
Count III of the information was entitled: “Introduce Contraband into Detention Facility.” However, the language of count III charged that appellant did unlawfully “introduce into or possess upon the grounds of a county detention facility” various contraband (emphasis added).
After the denial of his motion to suppress, appellant entered a plea of no contest to all counts. The plea was open, rather than negotiated. The trial court accepted appellant’s plea and adjudicated him guilty on all counts. A Presentence Investigation was ordered and the case was reset for sentencing.
A few weeks after entering his plea, appellant filed a motion to withdraw his plea on counts I, IV, V, and VI, but to allow the adjudications on counts II and III to remain. The motion argued that double jeopardy precluded appellant’s convictions on counts I, IV, V, and VI where he was also convicted on count III.
The prosecutor ultimately acknowledged that double jeopardy prohibited appellant from being convicted of both count III and the possession charges, explaining that the possession charges were lesser included offenses of the charge of introducing or possessing contraband at a detention facility. However, the prosecutor denied that double jeopardy affected count I, the trafficking count, because trafficking contained an element of the crime, namely amount of drugs, that count III did not. The prosecutor proposed that the court “withdraw” the adjudication on count III, explaining: “[T]hat way you are not imposing any adjudication or sentence at all and potentially that cures the problem as well.”
Following the hearing, the trial court entered an order denying appellant’s motion to withdraw plea, but ordering “that the adjudication imposed on count 3 is hereby vacated and set aside.” The order further explained: “To avoid an alleged violation of the Double Jeopardy Clause, by agreement of the State, the Court will not adjudicate or sentence the defendant on count 3.”
The court then sentenced appellant. On count I for trafficking in oxycodone, appel *346 lant was sentenced to 15 years with a 3-year mandatory minimum as a habitual felony offender. On count II, appellant was sentenced to 15 years as a habitual felony offender. On counts IV, V, and VI, he was sentenced to 91.8 months in prison. All sentences were concurrent. The judgments entered prior to the order addressing the motion to withdraw plea have an “X” crossing out the entire document, and new judgments reflecting convictions and sentences only on counts I, II, IV, V and VI were entered on the date of sentencing. This appeal followed.
Both the state and the appellant agree that double jeopardy would be violated by a conviction and sentence for both the introduction
or possession
of contraband in a facility and the counts for possession of that same contraband. Section 951.22(1), Florida Statutes, provides that “[i]t is unlawful ... to introduce into or possess upon the grounds of any county detention facility ... controlled substances.... ” Thus, where a defendant is convicted of both simple possession and a violation of section 951.22, a double jeopardy violation occurs if it cannot be determined which conduct-introduction or possession-is the basis for the conviction under section 951.22.
See, e.g., Desire v. State,
Appellant mistakenly claims, however, that the court withheld adjudication on count III, thus continuing to cause a double jeopardy issue. For double jeopardy purposes, the withholding of adjudication constitutes a conviction.
See Bolding v. State,
While the normal practice is to vacate the lesser included offenses,
see Raines v. State,
Affirmed.