JOHN ST. LOUIS, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Rex Barbas
and Vivian T. Corvo, Judges.
L. Dimmig, II, Public Defender, and John C. Fisher, Assistant
Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Brandon R.
Christian, Assistant Attorney General, Tampa, for Appellee.
St. Louis appeals his convictions and sentences for delivery
of cocaine, a second-degree felony; possession of cocaine
with intent to sell or deliver, a second-degree felony; and
possession of cocaine, a third-degree felony. We reject
without comment St. Louis's argument that the trial court
erred in denying his motion for judgment of acquittal. We
also affirm without comment St. Louis's convictions for
delivery of cocaine and possession of cocaine with intent to
sell or deliver. However, we agree with St. Louis that his
conviction and sentence for the third-degree felony of
possession of cocaine must be vacated as being a violation of
the prohibition against double jeopardy.
only recite the facts necessary to adjudicate this appeal.
St. Louis was arrested as a result of a cocaine purchase by a
detective through an undercover criminal informant. St. Louis
had a single stash of cocaine in his nightstand from which he
removed a portion that he sold to the informant. St. Louis
was then arrested for the three charges described above, and
he was convicted as charged after a jury trial. The trial
court sentenced him on each of the three convictions.
appeal, St. Louis argues for the first time that his
convictions for possession of cocaine with intent to sell and
deliver and simple possession of cocaine violate double
jeopardy because they arise out of the same quantum of
cocaine. Although St. Louis did not make this double jeopardy
argument in the trial court, a "double jeopardy claim
presents an issue of fundamental error that may be raised for
the first time on appeal." McGlorthon v. State,
908 So.2d 554, 555 (Fla. 2d DCA 2005). And the facts of
McGlorthon are analogous to the facts here. In
McGlorthon, this court reversed one of
McGlorthon's convictions for possession of cocaine. One
conviction was based on possession of the cocaine sold to an
undercover officer while the other was based on
McGlorthon's possession of the quantum of cocaine
remaining after the sale. This court noted in an apt analogy
that it "fail[ed] to see how there can be a legal
distinction between the produce leaving the peddler's
hand or in his pocket and that still on the push cart."
Id. at 556 (quoting Jackson v. State, 418
So.2d 456, 458 (Fla. 4th DCA 1982)). Given the virtually
identical facts here, McGlorthon controls our
defense of the two convictions, the State argues that St.
Louis separately possessed two quantities of cocaine so as to
constitute two distinct crimes of possession. According to
the State, one possession conviction was based on the cocaine
that St. Louis sold to the confidential informant, while the
other possession conviction was based on the cocaine that
remained in St. Louis's nightstand after the sale. And in
support of its argument, the State cites Mosely v.
State, 659 So.2d 1342, 1344 (Fla. 5th DCA 1995).
However, the facts in Mosely are distinguishable
from those here. The court in Mosely determined that
"[t]he powdered cocaine residue found in Mosely's
wallet had nothing to do with the crack cocaine found
concealed in the trunk of Mosely's automobile."
Id. This is a critical distinction because, unlike
in this case, "Mosely was not charged and convicted of
trafficking by possession and possession of the same
drugs." Id. Mosely's powdered cocaine was
found in his wallet, while he separately possessed a much
larger amount of crack cocaine that was concealed in the
trunk of his car. In other words, the cocaine sold was not
merely a portion of a larger amount possessed in the same
form and the same place. Instead, it was a different form of
cocaine kept in a separate location. Thus, the two
convictions did not violate double jeopardy.
in contrast, St. Louis's act of selling a portion of his
cocaine stash, all of which emanated from a single source and
location, could not factually support separate possession
convictions for both the quantity sold and the quantity that
remained. The resolution of this case is governed by
McGlorthon, not Mosely. Hence, we must
vacate one of St. Louis's two possession convictions as
violative of double jeopardy. See McGlorthon, 908
So.2d at 556.
the remedy, "when a defendant is found guilty for two
offenses and adjudication of the defendant as guilty for both
offenses would violate double jeopardy . . . the lesser
offense . . . should be vacated." State v.
Tuttle, 177 So.3d 1246, 1253 (Fla. 2015). Here, the
lesser offense is the simple possession conviction. See
Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006)
(holding that lesser offenses "are those in which the
elements of the lesser offense are always subsumed within the
greater, without regard to the charging document or evidence
at trial" (quoting State v. Florida, 894 So.2d
941, 947 (Fla. 2005))).
we vacate St. Louis's conviction and sentence for the
third-degree felony of simple possession of cocaine and
remand for resentencing using a corrected scoresheet. We
affirm the two remaining convictions in all other respects.
in part, vacated in part, and ...