Scarpillo v. StateScarpillo v. State
In this аppeal from a conviction of unlawful purchase оf cocaine within 1000 feet of a school, a convictiоn of unlawful possession of the same cocaine, and sentences rendered for those convictions, appеllant raises three issues. The first two, the constitutionality of the statutе and appellant’s due process argument, have been put to rest by Burch v. State,
Whether the trial court erred in Entering Judgment and Sentence for both purсhasing cocaine and possession of cocaine where each offense was based on a single underlying aсt?
We answer the proffered question in the affirmative. The legаl issue implicated in our analysis is whether the legislature may provide that a single act or transaction, violative of two оr more statutory prohibitions, may be punished as two or more distinсt crimes without violating the constitutional proscription against double jeopardy. Prior to the Florida Supreme Court’s prоnouncement to the contrary in Carawan v. State,
Our supreme court, in Carawan, basically held that a single act could not form the basis for morе than one conviction and sentence. The court denied rehearing of Carawan on December 10, 1987.
The legislature then amended section 775.021(4), Florida Statutes (Supp.1988), effective July 1, 1988. The effect of the amendment was to supercede Carawan and to restore the law to its pre-Carawan status for all cases arising after thе statute’s effective date.
Here, appellant committed the crimes of which she stands convicted on December 3, 1987. The question is which test applies. Under Blockburger, both convictions and sentences would be valid. Carawan would require that the conviction and sentence for the lesser offense be vaсated.
To answer that question we make the following preliminary observations. For purposes of applying Carawan, it is not material that the court denied rehearing of that case on Deсember 10,1987, seven days after the crimes involved in this appeal were perpetrated; rather, Carawan was operative from the time it was decided on September 3, 1987. The dates of a defendant’s trial are also immaterial. Application of the July 1988 amendment to the statute to a crime committed prior to that date (as here) would constitute a prohibited ex pоst facto application of that amendment. See article X, section 9, Constitution of Florida. Carawan was not to be applied retroactively. State v. Glenn,
Given these underlying considerations, we construct the following chart:
Crime committed before July 1, 1988 and
Appeal concluded before September 3, 1987: Blockburger
Appeal concluded thereafter: Cara-wan
Crime committed after July 1, 1988: Blockburger.
Summarizing, the window for the application of Carawan has two dimensions: the crime must have been committed before July 1, 1988, and thе appeal from conviction of that crime must not have been concluded before September 3, 1987.
Applying the fоregoing to appellant’s circumstances, we conсlude that Carawan applies. Thus, we reverse and remand with instructions to expunge the conviction and sentence for possessiоn of cocaine. Because the sentences were to run concurrently, and the offending sentence is for the shorter term, it will not be necessary to resentenee appellant.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.