Richardson v. State
Decision Date | 26 November 2007 |
Docket Number | No. 1D06-6382.,1D06-6382. |
Citation | 969 So.2d 535 |
Parties | Relyea Theartis RICHARDSON, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, and Judy A. Bone, Assistant Attorney General, Tallahassee, for Appellee.
Convicted twice for possession of cocaine and twice for sale of cocaine within 1,000 feet of a place of worship, Relyea Theartis Richardson contends his right not to be convicted more than once for the same offense was twice violated. We conclude he is half right. As to the possession convictions, we agree there was a double jeopardy violation. But the jury was entitled to conclude that there were two, discrete sales. We affirm in part, reverse in part, and remand with directions to vacate appellant's sentences and one of his convictions for possession, and for resentencing.
A confidential informant brought an undercover Alachua County sheriff's deputy with him to buy crack cocaine from appellant. The informant approached appellant's car window and gave him $100 (provided by the Sheriff's Office) in exchange for "about five or six rocks" of crack cocaine, then asked whether the appellant "wanted to sell [his] buddy some dope; some drugs." After an affirmative response, the deputy sheriff came over and purchased additional cocaine, handing over other money the Sheriff's Office had provided. Altogether, the deputy sheriff and the informant purchased 0.9 grams of cocaine from Mr. Richardson. The sale to the informant took about 10 seconds. The second transaction occurred approximately 15 seconds later. Both exchanges were accomplished within 30 seconds.
Two convictions for possession of cocaine at the same time and place violate double jeopardy principles. See Gibbs v. State, 698 So.2d 1206, 1209-10 (Fla.1997) ( ); Wiggins v. State, 967 So.2d 417, 418 (Fla. 1st DCA 2007) ( ); Godfrey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006) ( ); McGlorthon v. State, 908 So.2d 554, 556 (Fla. 2d DCA 2005) ( ); Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th DCA 1992) ( ); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982) ( ).1 The State concedes that the trial court erred in not dismissing one of the two possession counts.
Appellant also argues that his two convictions for sale of cocaine within 1,000 feet of a place of worship punish him twice for the same offense and thus unconstitutionally subject him to double jeopardy. See Art. I, § 9, Fla. Const.; U.S. Const. amend. V; State v. Paul, 934 So.2d 1167, 1171 (Fla.2006). See also State v. Smith, 547 So.2d 613, 614 (Fla.1989) () (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). In determining whether multiple convictions violate double jeopardy principles, courts must ask whether the Legislature intended to recognize separate crimes. See Paul, 934 So.2d at 1171-72; Cabrera v. State, 884 So.2d 482, 483-84 (Fla. 5th DCA 2004).
Absent a specific statement of legislative intent, the Legislature requires that courts apply the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See § 775.021(4), Fla. Stat. (2004); Paul, 934 So.2d at 1172; Cabrera, 884 So.2d at 483-84. Under the Blockburger test, whether multiple offenses occurred turns on "whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a `temporal break' between offenses." Paul, 934 So.2d at 1173 (quoting Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004)); Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001); Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). See, e.g., Cabrera, 884 So.2d at 484 ( ); Russo, 804 So.2d at 422 ( ); Gresham v. State, 725 So.2d 419, 420 (Fla. 4th DCA 1999) ( ). We are not concerned here with an uninterrupted assault on a single victim.
Although Richardson sold cocaine to two different individuals, both the confidential informant and the undercover agent were acting in concert and as agents of the same buyer, the Alachua County Sheriff's Office. Both transactions, moreover, were completed in one location and within 30 seconds. But "where a defendant commits two or more distinct criminal acts," double jeopardy principles "do[] not prohibit multiple convictions and punishments." Hayes v. State, 803 So.2d 695, 700 (Fla.2001); see also Paul, 934 So.2d at 1172 n. 3 ( ); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982) ().
As Judge Cowart explained in Miles v. State, 418 So.2d 1070, 1072 (Fla. 5th DCA 1982), "[a]ny two offenses are `the same offense' within the constitutional double jeopardy prohibition if, (a) in law, both have the identical essential constituent elements or all of the essential constituent elements of one offense are entirely included in the essential constituent elements of the other offense, and, (b) in fact, both offenses relate to the exact same factual event." See Miles, 418 So.2d at 1072 (Cowart, J., concurring specially) (footnotes omitted). While Richardson's two convictions for sale of cocaine in violation of section 893.13(1)(e), Florida Statutes (2004), indisputably contain identical legal elements, the two convictions arise from two factually separate and distinct sales of cocaine, sales which may be punished separately without violating double jeopardy prohibitions.
The Fourth District's decision in Stankiewicz v. State, 921 So.2d 863 (Fla. 4th DCA 2006), to reverse one of two convictions for sale of cocaine on double jeopardy grounds is distinguishable. Stankiewicz involved the sale of cocaine to a single undercover officer. Prior to the meeting at which the sale occurred, Stankiewicz and the officer had discussed how much money the officer should bring to the meeting ($5,000), but had not agreed on the exact amount of cocaine Stankiewicz would sell the officer. Stankiewicz, 921 So.2d at 863. Stankiewicz arrived with two separate quantities of cocaine. Id. at 863-64. After unsuccessfully attempting to purchase both quantities for $5,000, the officer paid Stankiewicz $5,500 for both quantities. Id. at 864. On appeal, the Fourth District reversed one of the sale convictions on double jeopardy grounds, holding...
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