Gordon v. State

• Decision Date: 27 May 1988
• Docket Number: No. 86-2444,86-2444
• Citation: 13 Fla. L. Weekly 1286,528 So.2d 910
• Parties: 13 Fla. L. Weekly 1286, 13 Fla. L. Weekly 1586 Bruce Edwards GORDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 910

528 So.2d 910

13 Fla. L. Weekly 1286, 13 Fla. L. Weekly 1586

Bruce Edwards GORDON, Appellant, v. STATE of Florida, Appellee.

No. 86-2444.

District Court of Appeal of Florida,

Second District.

May 27, 1988.

As Amended on Denial of Rehearing

July 6, 1988.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

The appellant, Bruce Gordon, contends that his convictions for sale of cocaine and possession of that same cocaine with intent to sell violated his double jeopardy rights. We agree and reverse on the authority of our supreme court's recent decision in Carawan v. State, 515 So.2d 161 (Fla.1987).

We stress that, in accord with Carawan, 515 So.2d at 170, footnote 8, we are dealing with a single act which gave rise to the two charges and subsequent convictions and sentences, and not with a criminal "transaction" or "episode." ¹ The single act in question in the appellant's case occurred on February 27, 1986. On this date, the appellant possessed a single piece of crack cocaine, known as a rock, which he sold to undercover police agents for ten dollars. ² Based on the sale of this one cocaine rock, the appellant was arrested and the state filed an information against him charging two violations of section 893.13(1)(a), Florida Statutes (1985): one count of sale of cocaine and one count of possession of cocaine with intent to sell. The appellant unsuccessfully moved for dismissal of the possession-with-intent-to-sell count on double jeopardy grounds. Thereafter, he pled nolo contendere to both counts, specifically reserving his right to appeal the denial of his motion to dismiss. He was adjudicated guilty of both counts and sentenced on both counts within the guidelines.

The appellant argues that because his convictions and sentences for sale of cocaine and, also, possession of that same cocaine with intent to sell, both in violation of section 893.13(1)(a), Florida Statutes (1985), were predicated on but a single underlying act, his constitutional protection against multiple punishments for the same offense has been violated. The state, on the other hand, contends that despite the fact that what it considers two separate crimes occurred in extremely close temporal proximity, there were, undoubtedly, two separate crimes committed here, crimes which the legislature has clearly intended be punished separately. ³

The task before us, as it was before the supreme court in Carawan, is "the proper method of construing criminal statutes in light of the prohibition against double jeopardy contained in the state and federal constitutions." Id. at 163 (footnote omitted). The statute we construe is the following:

893.13 Prohibited acts; penalties.--

(1)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:

1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d) (2)(a) [cocaine in any form] or (2)(b) is guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084.

As directed by Carawan, the first step in our analysis is to find, if possible, any statement of legislative intent regarding whether the two offenses in question are separate offenses, to be punished separately, or, if they are but one offense at law. ⁴ Indeed, the appellant argues that the placing of these two crimes within the same sentence of the statute indicates that they are the same "offense" and that the legislature is merely providing different avenues for law enforcement to attack the same evil. As Carawan points out:

[B]ecause of the constant patchwork revisions of Florida's criminal code, certain statutes may be drafted only to punish for frustrated criminal attempts, or to provide special penalties for crimes that essentially are only aggravated versions of other crimes, although perhaps going under different names.

515 So.2d at 168. The mere placement, therefore, of the two crimes within the statute's proscription will not provide the necessary clear intent language. ⁵ Such intent language has not been cited to us, nor can we find such language obviating the need to progress to the second step of the Carawan analysis.

Because we lack an indication of legislative intent on this issue, we proceed to the second step of the analysis: application of the Blockburger ⁶ test to the elements of the two crimes. In order for the crimes to be separate we must find that each crime contains an element not contained within the other. Id. We begin our discussion with the possession element of these two crimes. A defendant cannot be convicted of either crime unless he is deemed, at law, to have had some sort of possession of the contraband. ⁷ As to the crime of sale, a defendant need not be the actual possessor of the contraband although such actual possession will naturally result in criminal sanctions as in the instant case. The possessory element can be shared by others legally responsible for the crime. For example, a person acting as a go-between or broker ⁸ may arrange for or be the moving force in the sale of contraband, yet never have either actual nor constructive possession of the contraband. In such a case, the act of the seller who has actual possession of the contraband becomes the act of the broker. The broker is deemed to have the same possession as the seller and can be convicted as a principal of the crime of sale under Chapter 777, Florida Statutes. ⁹ As to the crime of possession-with-intent-to-sell, we need not elaborate on the obvious, to wit, possession is an element of this crime. ¹⁰ In the case before us, then, where there is no question of a broker or others involved in the crime charged, but rather a single act with a single defendant, we conclude that the first element of the crime of sale of contraband as well as the crime of possession-with-intent-to-sell contraband is possession.

We turn now to the next element, intent. All criminal behavior requires proof of criminal intent, the mens rea, which serves to distinguish such behavior from accidental (noncriminal) behavior or negligent behavior. See generally W. LaFave & A. Scott, Substantive Criminal Law § 3.5(e) (1986). There is no question that the intent element in the crime of possession-with-intent-to-sell is "intent to sell." Regarding the crime of sale, we discern also that the intent there is "intent to sell" because a person will not (or cannot) voluntarily effectuate a sale without desiring such result. "[A] man is to be taken to intend what he does, or that which is the necessary and natural consequence of his own act." R. Perkins, Perkins on Criminal Law 748 (2d ed. 1969), citing Harrison v. Commonwealth, 79 Va. 374, 377 (1884). We conclude, therefore, that the two crimes at issue here so far involve the same two elements: possession and intent. ¹¹ This is the point where the similarity between these two crimes ends.

The sum of the elements of the crime of possession-with-intent-to-sell is two (2): the state must merely prove the defendant (a) possessed the contraband with (b) the intent to sell it. The crime of sale of contraband contains these two elements plus a third. This third element is the actual sale as defined in Florida Standard Jury Instructions in Criminal Cases (1987 ed.), page 219: " 'sell' means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value." It will be evident that in contrasting the component elements of these two crimes that in proving the elements of sale, the prosecution cannot also help but prove the elements of possession-with-intent-to-sell. Two of our sister courts have reached this same conclusion. Fletcher v. State, 428 So.2d 667 (Fla. 1st DCA 1982), petition for review denied, 430 So.2d 452 (Fla.1983) (a pre-Carawan decision), and Smith v. State, 524 So.2d 461 (Fla. 4th DCA 1988), (a post-Carawan decision). The fourth district in Smith has acknowledged conflict on this question with our own pre-Carawan opinion in Dukes v. State, 464 So.2d 582 (Fla. 2d DCA 1985).

To the extent Dukes conflicts with Carawan, it, of course, does not survive. Dukes noted that the crime of possession-with-intent-to-sell does not include the element of sale. This is indeed true as we have concluded in the instant case. Our analysis in Dukes was correct so far as it went, but it was, as we learn in Carawan, incomplete. In Dukes we failed to continue on to the next step to delineate the unique element that the crime of possession-with-intent-to-sell contraband has that the crime of sale of contraband does not. Without this further inquiry the Blockburger analysis was incomplete as it regarded these two crimes. A complete Blockburger inquiry would have revealed that the crime of possession-with-intent-to-sell contained no element not also contained within the crime of sale. ¹² Dukes was correct, however, in its disposition of the third case discussed in the opinion, 464 So.2d at 584 (Case No. 83-2369), because the factual circumstances showed that the appellant had placed a baggie of marijuana in a nearby window--thus committing the crime of possessing marijuana with intent to sell--just after selling a completely different baggie of marijuana to a passenger in a passing car. Thus, the two crimes were predicated upon separate acts and the appellant was then properly convicted and punished for both. In summary, that part of Dukes finding no double jeopardy violation for two crimes predicated upon a single act, relying on the incomplete Blockburger test, is no longer viable after Carawan; thus, we today recognize...