State v. Burton
| Decision Date | 07 December 1989 |
| Docket Number | No. 73700,73700 |
| Citation | 555 So.2d 1210,14 Fla. L. Weekly 592 |
| Parties | 14 Fla. L. Weekly 592 STATE of Florida, Petitioner, v. Bobby Joe BURTON, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for petitioner.
James Marion Moorman, Public Defender, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for respondent.
We have for review Burton v. State, 541 So.2d 1203 (Fla.2d DCA 1988), which held that the defendant cannot be convicted of both delivery and possession of the same cocaine without violating his double jeopardy rights under the federal and state constitutions. We take jurisdiction to resolve alleged conflict with Smith v. State, 430 So.2d 448 (Fla.1983). Art. V, § 3(b)(3), Fla.Const.
We held, in State v. Smith, 547 So.2d 613 (Fla.1989), which applied chapter 88-131, section 7, Laws of Florida, 1 that the legislature intended the following to be separate offenses subject to separate convictions and separate punishments: the sale or delivery of a controlled substance; and possession of that substance with intent to sell. We also held that although chapter 88-131 overrode Carawan v. State, 515 So.2d 161 (Fla.1987), nevertheless, it is not to be applied retroactively.
Because the convictions at issue here are based on an incident which occurred prior to July 1, 1988, 2 the effective date of chapter 88-131, we approve the result reached by the district court.
It is so ordered.
1 This section amended subsection 775.021(4), Florida Statutes, to provide:
(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...
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St. Clair v. State, 88-00930
...and several post-89-Smith supreme court cases. These most recent cases are State v. Parker, 551 So.2d 1209 (Fla.1989), State v. Burton, 555 So.2d 1210 (Fla.1989), State v. Hatten, 560 So.2d 1172 (Fla.1990), and Porterfield v. State, 567 So.2d 429 (Fla.1990). These cases provide at least a s......
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Davis v. State
...State, 528 So.2d 910 (Fla. 2d DCA 1988)) but whether it is a necessary element under the statute. This is consistent with State v. Burton, 555 So.2d 1210 (Fla.1989) in which the Florida Supreme Court indicates approval of the legislative intent to treat sale and possession of the same subst......
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State v. McCloud
...separate convictions and separate punishments. Ch. 88-131, § 7, Laws of Fla. (amending § 775.021(4), Fla.Stat. (1987)); see State v. Burton, 555 So.2d 1210 (Fla.1989). However, the offenses at issue in Smith occurred prior to the July 1, 1988 effective date of chapter 88-131, and we decline......
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Crisel v. State, 89-00016
...upon section 775.021(4)(b)(3), Florida Statutes (Supp.1988). I disagree. As our supreme court unanimously recognized in State v. Burton, 555 So.2d 1210 (Fla.1989): We held, in State v. Smith, 547 So.2d 613 (Fla.1989), which applied chapter 88-131, section 7, Laws of Florida, that the legisl......