IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DANA DAVID JOHNSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-2441
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed November 14, 2014.
An appeal from the Circuit Court for Washington County.
Christopher N. Patterson, Judge.
Nancy A. Daniels, Public Defender, and Zachary F. Lawton, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.
LEWIS, C.J.
Appellant, Dana David Johnson, appeals his convictions and sentences for
the sale of cocaine and the manufacture of crack cocaine, arguing that the
convictions violate the prohibition against double jeopardy because both offenses
are violations of section 893.13(1)(a), Florida Statutes. For the following reasons,
we affirm.
A double jeopardy violation constitutes fundamental error which may be
raised for the first time on appeal. Stowe v. State,
66 So. 3d 1015, 1016 (Fla. 1st
DCA 2011). In order to determine if a defendant’s convictions violate double
jeopardy, it must first be ascertained if the offenses were based on an act or acts
that occurred within the same criminal transaction and/or episode. Partch v. State,
43 So. 3d 758, 760 (Fla. 1st DCA 2010). If the offenses occurred during the same
transaction or episode, it must then be determined if the convictions were
predicated on distinct acts.
Id. If the offenses are not predicated on distinct acts
and occurred within the same criminal episode, it must be decided if the offenses
survive a “same elements” test as defined by section 775.021, Florida Statutes,
which is commonly referred to as the Blockburger1 analysis.
Id. Section 775.021,
Florida Statutes (2011), provides in part:
(4)(a) Whoever, in the course of one criminal transaction or episode,
commits an act or acts which constitute one or more separate criminal
offenses, upon conviction and adjudication of guilt, shall be sentenced
separately for each criminal offense; and the sentencing judge may
order the sentences to be served concurrently or consecutively. For
the purposes of this subsection, offenses are separate if each offense
requires proof of an element that the other does not, without regard to
the accusatory pleading or the proof adduced at trial.
1
Blockburger v. United States,
284 U.S. 299 (1932).
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(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.
Section 893.13(1)(a), Florida Statutes (2011), provides that “[i]t is unlawful
for any person to sell, manufacture, or deliver, or possess with intent to sell,
manufacture, or deliver, a controlled substance.” The term “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.” Fla. Std. Jury
Instr. (Crim.) 25.2. The term “manufacture” means the “production, preparation,
propagation, compounding, cultivating, growing, conversion, or processing of a
controlled substance, either directly or indirectly, by extraction from substances of
natural origin, or independently by means of chemical synthesis . . . .” §
893.02(15)(a), Fla. Stat. (2011).
According to Appellant, the Legislature defined a “single statutory offense”
in section 893.13(1)(a). We disagree. The plain language of the statute prohibits
four different acts – the sale, manufacture, delivery, or possession with intent to
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sell, manufacture, or deliver a controlled substance. Although Appellant cites
State v. McCloud,
577 So. 2d 939 (Fla. 1991), on appeal, the case supports
affirmance in this case. In McCloud, the supreme court addressed the certified
question of whether convictions “based on the crimes of sale and possession (or
possession with intent to sell) of the same quantum of contraband” violate the
prohibition against double jeopardy.
Id. at 940. In answering the question in the
negative, the supreme court concluded that “because there are situations . . . where
a sale can occur without possession, possession is not an essential element of sale
and is therefore not a lesser-included offense.”
Id. at 941.
While Appellant attempts to distinguish McCloud on the basis that the
defendant in that case was convicted of crimes under “two distinct subsections” of
section 893.13 while he was convicted of two crimes under a single subsection, the
certified question included the offense of possession with intent to sell, an offense
prohibited by the same subsection of section 893.13 as the sale of a controlled
substance. In Thomas v. State,
61 So. 3d 1157, 1158 (Fla. 1st DCA 2011), we
rejected the appellant’s argument that his convictions for selling cocaine within
1000 feet of a school and possession of cocaine with intent to sell within 1000 feet
of a school, both violations of section 893.13(1)(c), violated the prohibition against
double jeopardy. In doing so, we relied upon McCloud, reasoning that “[a]s the
[certified] question is worded and answered in McCloud, the instant convictions
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would not constitute double jeopardy.”
Id. at 1158-59; see also State v. Oliver,
581 So. 2d 1304, 1305 (Fla. 1991) (relying on McCloud in holding that convictions
for possession with intent to sell cocaine and sale of cocaine did not violate the
prohibition against double jeopardy); McMullen v. State,
876 So. 2d 589, 590 (Fla.
5th DCA 2004) (citing McCloud in support of its holding that the offenses of sale
of cocaine within 1000 feet of a place of worship and possession of cocaine with
the intent to sell or deliver within 1000 feet of a place of worship, both violations
of section 893.13(1)(e)1, did not violate the prohibition against double jeopardy);
Huey v. State,
722 So. 2d 286, 286 (Fla. 5th DCA 1998) (“There is no double
jeopardy violation when a defendant is convicted of the crime of delivery of a
controlled substance and possession with intent to sell the same substance, because
each crime contains an element that the other does not.”).
Based upon the foregoing authorities and the fact that the offenses at issue in
this case each contain an element that the other does not, we reject Appellant’s
argument that his convictions violate the prohibition against double jeopardy. We,
therefore, AFFIRM.
SWANSON, J., CONCURS; BENTON, J., CONCURS WITH OPINION.
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BENTON, J., concurring in the judgment.
As the majority opinion explains, a necessary, preliminary inquiry is
whether distinct acts were charged and proven. Where one act constitutes one
crime and another act constitutes another, no double jeopardy problem arises. In
the present case, a confidential informant approached the appellant, gave him $60,
and received cocaine powder in exchange. Only thereafter did the appellant
“cook” some of the powder, rendering it crack cocaine, and hand the crack cocaine
(back) to the informant. In my view, appellant has not shown why the state was
not entitled to view the sale and the “manufacturing” as distinct acts.
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