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Driver v. State

Florida Court of Appeals, Fourth District

January 15, 2020

TREMAINE DRIVER, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Daliah H. Weiss and Barry Cohen, Judges; L.T. Case No. 502017CF003114AXXXMB.

          Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner, Assistant Attorney General, West Palm Beach, for appellee.

          LEVINE, C.J.

         Appellant appeals his convictions and sentences for various drug-related offenses, raising several issues. We find that appellant's convictions for trafficking in heroin and possession of heroin with intent to sell violate double jeopardy. Because separate convictions are permissible only where each offense contains an element that the other lacks, and trafficking in heroin does not contain an element that possession of heroin with intent to sell lacks, we therefore vacate the conviction and sentence for possession of heroin with intent to sell. We further find that the trial court properly denied the motion for judgment of acquittal for the firearm enhancement under section 775.087(1). This particular statute does not require actual possession, and the state proved that appellant constructively possessed the firearms that were found with the drugs in his bedroom. Therefore, we affirm this issue. We affirm the remaining issues without further comment.

         Appellant argues that double jeopardy barred him from being convicted and sentenced on both trafficking in heroin and possession of heroin with intent to sell. "Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo." Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008).

         "The constitutional protection against double jeopardy is found in both article I, section 9, of the Florida Constitution and the Fifth Amendment to the United States Constitution, which contain double jeopardy clauses." Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009). "The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature 'intended to authorize separate punishments for the two crimes.'" Id. at 1070 (citation omitted). If there is no clear "legislative intent to authorize separate punishments for two crimes," then a court employs the Blockburger test to determine whether separate offenses exist. Id.

         Section 775.021(4), Florida Statutes, which codifies the Blockburger test, states:

(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.
(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 ...

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