Key v. State

District Court of Appeal of Florida

Key v. State

528 So. 2d 916, 13 Fla. L. Weekly 1750, 1988 Fla. App. LEXIS 3288, 1988 WL 74803

CourtDistrict Court of Appeal of Florida

DecidedJuly 22, 1988

DocketNo. 87-1323

StatusPublished

This text of 528 So. 2d 916 (Key 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.

Bluebook

Key v. State, 528 So. 2d 916, 13 Fla. L. Weekly 1750, 1988 Fla. App. LEXIS 3288, 1988 WL 74803 (Fla. Ct. App. 1988).

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Opinion

PARKER, Judge.

Key appeals from her judgment and sentences for possession of cocaine with intent to sell and sale of cocaine predicated upon a single act.¹ Key challenges the convictions and sentences primarily on double jeopardy grounds, asserting that they have resulted in her receiving multiple punishments for the same offense. The precise offenses underlying Key’s convictions were recently reviewed by this court under a similar double jeopardy challenge in Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988). In deciding this appeal, we find Gordon to be controlling. In Gordon, we held that the double jeopardy clauses of the federal and Florida constitutions prohibit punishing a defendant for the offenses of possession with intent to sell and sale of cocaine, both of which involved the same item of cocaine. Id. In accordance with Gordon, we remand the case to the trial court with instructions to vacate one of the two convictions and for a recalculation of Key’s recommended guidelines sentence absent the vacated conviction.

We further find error in the trial court’s imposition of court costs at the sentencing hearing without providing any statutory authority for the costs. Aultman v. State, 515 So.2d 391 (Fla. 2d DCA 1987). Such statutory support is also not included in the written judgment. Under these circumstances, the indigent defendant was not provided the required notice under Jenkins v. State, 444 So.2d 947 (Fla.1984), and opportunity to be heard and object. Ault-man.

Lastly, as conceded by the state, the sentencing judge orally imposed a lien for attorney’s fees in the amount of $350 while the judgment reflects a $355 lien for attorney’s fees. The judgment should, therefore, be corrected to conform with the trial court’s pronouncement.

Accordingly, we remand the case to the trial court for proceedings in conformity with this opinion.

Affirmed in part; vacated in part; remanded.

CAMPBELL, A.C.J., and FRANK, J., concur.

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PARKER, Judge.

Key appeals from her judgment and sentences for possession of cocaine with intent to sell and sale of cocaine predicated upon a single act.¹ Key challenges the convictions and sentences primarily on double jeopardy grounds, asserting that they have resulted in her receiving multiple punishments for the same offense. The precise offenses underlying Key’s convictions were recently reviewed by this court under a similar double jeopardy challenge in Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988). In deciding this appeal, we find Gordon to be controlling. In Gordon, we held that the double jeopardy clauses of the federal and Florida constitutions prohibit punishing a defendant for the offenses of possession with intent to sell and sale of cocaine, both of which involved the same item of cocaine. Id. In accordance with Gordon, we remand the case to the trial court with instructions to vacate one of the two convictions and for a recalculation of Key’s recommended guidelines sentence absent the vacated conviction.

We further find error in the trial court’s imposition of court costs at the sentencing hearing without providing any statutory authority for the costs. Aultman v. State, 515 So.2d 391 (Fla. 2d DCA 1987). Such statutory support is also not included in the written judgment. Under these circumstances, the indigent defendant was not provided the required notice under Jenkins v. State, 444 So.2d 947 (Fla.1984), and opportunity to be heard and object. Ault-man.

Lastly, as conceded by the state, the sentencing judge orally imposed a lien for attorney’s fees in the amount of $350 while the judgment reflects a $355 lien for attorney’s fees. The judgment should, therefore, be corrected to conform with the trial court’s pronouncement.

Accordingly, we remand the case to the trial court for proceedings in conformity with this opinion.

Affirmed in part; vacated in part; remanded.

CAMPBELL, A.C.J., and FRANK, J., concur.

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Bluebook (online)

528 So. 2d 916, 13 Fla. L. Weekly 1750, 1988 Fla. App. LEXIS 3288, 1988 WL 74803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/key-v-state-fladistctapp-1988.

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