Lundy v. State, 91-0113
| Decision Date | 01 April 1992 |
| Docket Number | No. 91-0113,91-0113 |
| Citation | 596 So.2d 1167 |
| Parties | 17 Fla. L. Weekly D854 Tracy Lee LUNDY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.
Lundy appeals twelve separate convictions and sentences for criminal contempt arising out of his refusing to answer questions propounded to him in the trial of a codefendant. He also challenges the constitutionality, on double jeopardy grounds, of his dual convictions and sentences for trafficking in cocaine (by possession) and possession of the same cocaine. We reverse as to all issues.
Following appellant's negotiated "no contest" plea, in which he agreed to testify at the trial of a codefendant, he was called to testify against the codefendant. Both were charged with drug offenses arising out of their arrest for possessing cocaine contained in a bag and a box located in the passenger compartment of a vehicle. The appellant invoked his Fifth Amendment privilege and refused to answer twelve questions, each related to some aspect of the incident. The state asserts that at least half of the questions related to these "subject areas" of inquiry which the state contends are each different: the appellant and codefendant being together on the date of the crime; appellant's attempted communication with the codefendant's attorney; the location of the drugs in the car; the arrest; prior deposition testimony concerning the same incident; and statements concerning the incident.
In this case it is clear that all of the state's inquiries related to the subject of the cocaine involved in this case, its location, how it was obtained, and the extent of the involvement of each participant. Although each query may address a different aspect of the crime and its surrounding circumstances, that, of itself, does not limit the appellant's ability to exercise his fifth amendment privilege as to the entire subject. Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); In re Tierney, 328 So.2d 40 (Fla. 4th DCA 1976); Haupt v. State, 499 So.2d 16 (Fla. 2d DCA 1986); Duff v. Southern Bell Tel. & Tel. Co., 386 So.2d 253 (Fla. 5th DCA 1980); Chance v. State, 382 So.2d 801 (Fla. 1st DCA 1980).
The state also argues that the amendment of Florida Statute Section 775.021(4) modified the applicable law. That amendment, imposed following the supreme court's decision in Carawan v. State, 515 So.2d 161 (Fla.1987), restricts the circumstances in which a court may refuse to sentence a defendant separately for each crime committed. However, we deem that statute inapposite, as here only one crime, a continuous contempt, was committed. 1
Concerning the additional issue, a defendant may not be convicted of both trafficking, by possession, and of simple possession of the same drugs. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Each offense is predicated on the defendant's possession of the same cocaine at the same time and place. Granted, trafficking requires proof of the additional element of...
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Gibbs v. State, 94-1244
...controlled substance possessed both on the person and in a vehicle could not give rise to separate prosecutions. In Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992), we held that the Double Jeopardy Clause of the federal Constitution prohibited separate convictions and punishment for simp......
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Grene v. State, 95-2063
...of a controlled substance. See Laines, 662 So.2d at 1249; Perrin v. State, 599 So.2d 1365 (Fla. 1st DCA 1992); Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992). Further, appellant argues that the trial court erred in sentencing him as a habitual offender for possession with intent to sell......
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Richardson v. State
...of cocaine in the bag did not give rise to a separate possession of the portion [the defendant] relinquished"); Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th DCA 1992) (noting that "to hold that a separate possessory crime is committed for each packet or package of the controlled substance......
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Boutwell v. State, 92-2206
...will not preclude raising the double jeopardy claim on appeal. Arnold v. State, 578 So.2d 515 (Fla. 4th DCA 1991); Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992).4 The trial judge appeared to be under the impression that jeopardy did not attach until he had adjudicated the defendant gui......
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Privilege
...in and of itself, does not limit a person’s ability to exercise the Fifth Amendment privilege as to the entire subject. Lundy v. State , 596 So.2d 1167 (Fla. App. 1992). Even though Section 90.501 wipes out the effect of all common law privileges and, moreover, all privileges not specifical......
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Privilege
...in and of itself, does not limit a person’s ability to exercise the Fifth Amendment privilege as to the entire subject. Lundy v. State , 596 So.2d 1167 (Fla. App. 1992). Even though Section 90.501 wipes out the effect of all common law privileges and, moreover, all privileges not specifical......
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Privilege
...in and of itself, does not limit a person’s ability to exercise the Fifth Amendment privilege as to the entire subject. Lundy v. State , 596 So.2d 1167 (Fla. App. 1992). Even though Section 90.501 wipes out the effect of all common law privileges and, moreover, all privileges not specifical......
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Privilege
...in and of itself, does not limit a person’s ability to exercise the Fifth Amendment privilege as to the entire subject. Lundy v. State , 596 So.2d 1167 (Fla. App. 1992). Even though Section 90.501 wipes out the effect of all common law privileges and, moreover, all privileges not specifical......