Tyler v. State

107 So. 3d 547, 2013 WL 673647, 2013 Fla. App. LEXIS 2994
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 2013
DocketNo. 1D11-6143
StatusPublished
Cited by3 cases

This text of 107 So. 3d 547 (Tyler 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
Tyler v. State, 107 So. 3d 547, 2013 WL 673647, 2013 Fla. App. LEXIS 2994 (Fla. Ct. App. 2013).

Opinion

BENTON, C.J.

On direct appeal, James Tyler, III, argues that his convictions both for the sale of cocaine and marijuana contrary to section 893.13(1), Florida Statutes (2010), and for possession of the same cocaine and marijuana contrary to section 893.13(6), Florida Statutes (2010), violated constitutional protections against double jeopardy. He also challenges the facial constitutionality of section 893.13. We affirm all four convictions.

Turning first to the second point appellant raises, we are guided by a recent decision of our supreme court that definitively construed the Florida Comprehensive Drug Abuse Prevention and Control Act, section 893.13, Florida Statutes (2011), and rejected the same constitution[548]*548al challenge to the same provisions (albeit of the 2010 version of the statute) that the appellant makes here. See State v. Adkins, 96 So.3d 412, 416 (Fla.2012) (“The statute thus expressly eliminates knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses and expressly creates an affirmative defense of lack of knowledge of the illicit nature of the substance. The statute does not eliminate the element of knowledge of the presence of the substance.”). See also Flagg v. State, 74 So.3d 138, 140 (Fla. 1st DCA 2011), review denied, 104 So.3d 1083 (Fla.2012). Our supreme court’s holding that “the Legislature’s decision to make the absence of knowledge of the illicit nature of the controlled substance an affirmative defense is constitutional,” Adkins, 96 So.3d at 423, resolves appellant’s facial challenge in the present case.

In the first point he raises, appellant contends that (even if each offense has no constitutional infirmity, standing alone) convictions and sentences for both sale and possession of the same cocaine and marijuana violate double jeopardy protections. State and federal double jeopardy clauses protect against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and, in keeping with the ancient maxim, nemo bis eodem delicto punitur, multiple punishments for the same offense. The Fifth Amendment’s double jeopardy clause provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536 81 L.Ed.2d 425 (1984) (citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)); see also Art. I, § 9, Fla. Const.; Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009) (explaining that double jeopardy “prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense”). Our supreme court has said that “if prosecution is for the same conduct under both statutes, a conviction under more than one of the statutes is a violation of double jeopardy principles.” Gibbs v. State, 698 So.2d 1206, 1210 (Fla.1997).

But the double jeopardy clause does not preclude multiple convictions based on the same transaction or conduct where the Legislature has proscribed multiple crimes of each of which some specified conduct is but an element. See Hayes v. State, 803 So.2d 695, 699 (Fla.2001). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also § 775.021, Fla. Stat. (2010) (codifying the Blockburger test to require that, without regard to pleadings or proof, each separate offense contain an element that another offense does not, in order to constitute multiple offenses).1 “Legislative intent is the polestar that guides our analysis in double jeopardy issues[.]” State v. Anderson, 695 So.2d 309, 311 (Fla.1997).

In arguing that his convictions amount to double jeopardy violations, appellant relies principally on Melton v. State, 73 So.3d [549]*549296, 297 (Fla. 1st DCA 2011) (holding that “convictions and sentences for the sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver methamphetamine in violation of section 898.13, Florida Statutes, (Count 1) and [for] trafficking in methamphetamine in violation of section 893.135, Florida Statutes, (Count 2) violated [the] constitutional protection against double jeopardy”). Our supreme court also found a double jeopardy violation where convictions both for trafficking under section 893.135, Florida Statutes, and for possession of a controlled substance with intent to sell under section 893.13(1), Florida Statutes,2 arose from the same facts. See Johnson v. State, 712 So.2d 380, 381 (Fla.1998).

Early on our supreme court decided that convictions for sale and “simple possession” (possession of less than a trafficking amount without intent to sell, manufacture or deliver) of the same controlled substance did not transgress double jeopardy prohibitions. See State v. McCloud, 577 So.2d 939, 940-41 (Fla.1991) (accepting the state’s argument that “the crime of possession does not require sale as an element” and stating that “a sale can occur without possession” because “possession is not an essential element of sale”). The McCloud court grounded its decision on a straightforward Blockburger analysis. Focusing on the fact that the same statutory subsection that makes sale a criminal offense outlaws “possession with intent to sell,” § 893.13(l)(a), Fla. Stat., however, our supreme court later ruled in Paccione v. State, 698 So.2d 252, 254 (Fla.1997):

While possession with the intent to sell contains an element that possession does not, the converse is not true. Simple possession contains no element not found in possession with the intent to sell. Therefore, under section 775.021(4)(a), Florida Statutes (1993), we find that the legislature did not intend to punish the offense of possession with the intent to sell separately from and in addition to the offense of simple possession. ...
... In McCloud, we found that each offense contained an element that the other did not. We reasoned that “the crime of sale does not require possession as an element, and the crime of possession does not require sale as an element.” McCloud, 577 So.2d at 940. Therefore, pursuant . to section 775.021(4)(a), Florida Statutes (Supp. 1988), there was no double jeopardy violation. As we have previously stated, a double jeopardy violation occurred in this case because each offense required knowing possession, and the simple possession statute did not contain any element not contained in the possession-with-intent-to-sell statute.

Paccione

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Bluebook (online)
107 So. 3d 547, 2013 WL 673647, 2013 Fla. App. LEXIS 2994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tyler-v-state-fladistctapp-2013.