Grant v. State

District Court of Appeal of Florida

Grant v. State

555 So. 2d 435, 1990 Fla. App. LEXIS 134, 1990 WL 2076

CourtDistrict Court of Appeal of Florida

DecidedJanuary 16, 1990

DocketNo. 88-2255

StatusPublished

Cited by1 cases

This text of 555 So. 2d 435 (Grant v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Grant v. State, 555 So. 2d 435, 1990 Fla. App. LEXIS 134, 1990 WL 2076 (Fla. Ct. App. 1990).

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Opinion

PER CURIAM.

This is an appeal by the defendant Peter Grant from judgments of conviction and sentences for (1) two counts of sale or delivery of a controlled substance, to wit: cocaine, and (2) two counts of unlawful possession of a controlled substance, to wit: cocaine, entered following an adverse jury verdict.

Based on the state’s confession of error with which we entirely agree, the judgments of conviction and sentences imposed below for the two counts of unlawful possession of a controlled substance, to wit: cocaine, are hereby reversed. It is undisputed that these convictions arise entirely out of two underlying criminal acts of the defendant in selling a quantity of cocaine to two undercover police officers, the same cocaine which forms the basis for [436]*436the defendant’s dual convictions for sale or delivery of a controlled substance, to wit: cocaine. This being so, the cocaine possession convictions are barred by the constitutional principles of double jeopardy. State v. Smith, 547 So.2d 613 (Fla.1989); Joseph v. State, 541 So.2d 796 (Fla. 3d DCA 1989); Blanca v. State, 532 So.2d 1327 (Fla. 3d DCA 1988).

There is no merit, however, to the defendant’s remaining point that the trial court committed reversible error by allowing the state to introduce certain hearsay testimony at trial. This testimony was not objected to by the defendant when offered in evidence by the state, and, consequently, the point has not been preserved for appellate review. The fact that the defendant had previously objected when the prosecutor outlined this testimony in his opening statement to the jury does not satisfy the requirement that the offending testimony must be contemporaneously objected to when offered in evidence in order to preserve the point for appellate review. See Castor v. State 365 So.2d 701, 703 (Fla.1978); Stanley v. State, 357 So.2d 1031, 1034 (Fla. 3d DCA), cert. denied, 364 So.2d 891 (Fla.1978). In any event, the error in allowing the state to mention the hearsay testimony in opening statement was entirely harmless.

The judgments of conviction and sentences for sale or delivery of a controlled substance, to wit: cocaine, are affirmed; the judgments of conviction and sentences for unlawful possession of a controlled substance, to wit: cocaine, are reversed and the defendant is hereby discharged therefrom.

Affirmed in part; reversed in part.

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PER CURIAM.

This is an appeal by the defendant Peter Grant from judgments of conviction and sentences for (1) two counts of sale or delivery of a controlled substance, to wit: cocaine, and (2) two counts of unlawful possession of a controlled substance, to wit: cocaine, entered following an adverse jury verdict.

Based on the state’s confession of error with which we entirely agree, the judgments of conviction and sentences imposed below for the two counts of unlawful possession of a controlled substance, to wit: cocaine, are hereby reversed. It is undisputed that these convictions arise entirely out of two underlying criminal acts of the defendant in selling a quantity of cocaine to two undercover police officers, the same cocaine which forms the basis for [436]*436the defendant’s dual convictions for sale or delivery of a controlled substance, to wit: cocaine. This being so, the cocaine possession convictions are barred by the constitutional principles of double jeopardy. State v. Smith, 547 So.2d 613 (Fla.1989); Joseph v. State, 541 So.2d 796 (Fla. 3d DCA 1989); Blanca v. State, 532 So.2d 1327 (Fla. 3d DCA 1988).

There is no merit, however, to the defendant’s remaining point that the trial court committed reversible error by allowing the state to introduce certain hearsay testimony at trial. This testimony was not objected to by the defendant when offered in evidence by the state, and, consequently, the point has not been preserved for appellate review. The fact that the defendant had previously objected when the prosecutor outlined this testimony in his opening statement to the jury does not satisfy the requirement that the offending testimony must be contemporaneously objected to when offered in evidence in order to preserve the point for appellate review. See Castor v. State 365 So.2d 701, 703 (Fla.1978); Stanley v. State, 357 So.2d 1031, 1034 (Fla. 3d DCA), cert. denied, 364 So.2d 891 (Fla.1978). In any event, the error in allowing the state to mention the hearsay testimony in opening statement was entirely harmless.

The judgments of conviction and sentences for sale or delivery of a controlled substance, to wit: cocaine, are affirmed; the judgments of conviction and sentences for unlawful possession of a controlled substance, to wit: cocaine, are reversed and the defendant is hereby discharged therefrom.

Affirmed in part; reversed in part.

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555 So. 2d 435, 1990 Fla. App. LEXIS 134, 1990 WL 2076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-v-state-fladistctapp-1990.

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