final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Daliah H. Weiss and Barry Cohen, Judges;
L.T. Case No. 502017CF003114AXXXMB.
A. Fleischman of Fleischman & Fleischman, P.A., West Palm
Beach, for appellant.
Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
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
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).
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.
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
(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.
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