State v. Peavey, 75--534
| Decision Date | 10 December 1975 |
| Docket Number | No. 75--534,75--534 |
| Citation | 326 So.2d 461 |
| Parties | STATE of Florida, Appellant, v. James Ernest PEAVEY, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellant.
Wilbur C. Smith, III, Smith & Carta, Fort Myers, for appellee.
The State appeals from an order granting a motion to dismiss a second information which was based on circumstances, or allegedly criminal conduct, giving rise to a prior information which was dismissed. We reverse.
The operative facts begin with appellee Peavey's home being under surveillance for suspected illegal drug activities. On the day in question Peavey left his home, entered his car and proceeded to drive off. Police officers stopped the car and a search revealed marijuana. He was placed under arrest and returned to the house where, apparently, a consent search revealed additional amounts of marijuana. The first information was filed herein charging him with possession on that date of a felony quantity of marijuana. Certain pre-trial discovery proceedings revealed that the state was relying upon the marijuana seized in the automobile as evidence of this charge. The information was subsequently dismissed by the state following an order suppressing that evidence.
Approximately four months later the state filed a second information, making out the same charge of possession of marijuana on the same date as previously, but this time based on the marijuana found in the house. Peavey filed a motion to dismiss this second information arguing double jeopardy and/or contending that the state was collaterally estopped from making out another charge of possession on the same date since, he says, the possession in the hosue and that in the car involved a 'single transaction' of which each incident constituted a facet. Dismissal of the first therefore, he argues, precludes prosecution of the second. The court granted the motion and dismissed the charge concluding that the second information was indeed on the same charge embraced in the prior information and that the dismissal of the latter was a bar to proceeding under the former. We must differ.
To begin with, we would agree that in all events under the facts herein Peavey could have been guilty of only one offense of possession of marijuana on the day and time in question. This is so because, within the contemplation of criminal sanctions, one is deemed at least 'constructively' possessed of contraband at a given time and place if he has knowledge of its presence on or about his person or premises and has the present ability exclusively or jointly with another to maintain control over it or reduce it to his physical possession or use; 1 and it matters not, we think, with respect to dispersible contraband of a given kind such as here, that it may be cached or located in different places on or about his person or on or about his premises. The several such contemporaneous 'possessions' constitute but One offense. 2
Conceivably, of course, one could possess on a part of any given day quantity X of contraband and, should he acquire quantity Y at a later time that day, possess quantity (X Y) on the same day. If the evidence established the possession only at the latter point in time he would then be guilty of only one offense, i.e., possession of quantity (X Y). If, however, the state is able to establish by competent proof that he was possessed at the earlier time of quantity X, and was similarly able to establish that subsequently on that day he was possessed of quantity Y, he would be guilty of two separate offenses, triable separately, neither of which would be a bar to a prosecution on the other. In practice, however, possession charges are made out and established on evidence of the quantity known to be possessed at the time of discovery of or arrest on such offenses.
But the important thing in this case is that having made out the one charge of possession at a given time on the day in question the state had a clear right to establish it by alternative proofs; and it seems to us that it doesn't make any difference whether it filed one information in two counts, one charging possession in the house on that day and time and the other possession in the car at the same time, or filed two informations each charging possession on that day and time at one of the respective locations. Proof of either or both instances of possession would have made out the charge.
Furthermore, the single two-count information or the two separate informations, as the case may be, may be prosecuted in the same trial. 3 But if a verdict of guilty is returned as to each count in the first instance, or as to each information in the second, only one judgment and one sentence could be imposed there being but one offense involved.
In this sense, the case really isn't a true 'single transaction' case at all. That is to say, in true multi-facet, 'single transaction' cases more than one Judgment may be entered, albeit but one sentence is appropriate and that for the highest offense. In those cases the proved 'single transaction,' at once, constitutes two or more offenses, not one, as here. For instance, evidence of a single sale of an illicit drug may also support a conviction of possession thereof. 4 Similarly, a single sale of an unregistered security may also constitute 'doing business' as a stockbroker without a license. 5 In a slightly different factual framework, a single robbery accomplished by the separate felony of using a firearm in the perpetration thereof is also a multifacet 'single transaction.' 6
Additionally, All so-called 'single transaction' cases are in turn to be distinguished from...
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Jackson v. State
...115 (Fla.1958). Applying the foregoing principles to the facts of this case, we think the following language in State v. Peavey, 326 So.2d 461, 462-63 (Fla. 2d DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976), is most To begin with, we would agree that in all events under the facts herein......
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Hallman v. State
...offense and one instant offense, overlap, the result should be different than that reached in Stiefel. See, e.g., State v. Peavey, 326 So.2d 461 (Fla. 2d DCA), cert. denied, 336 So.2d 1184 (Fla.1976) (two charges of possession of marijuana). Although there appear to be no Florida cases dire......
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O'Neal v. State
...the characteristics which distinguish it from the 'single episode' cases are explained in Chief Judge McNulty's opinion in State v. Peavey, Fla.App.2d, 326 So.2d 461, opinion filed December 10, ...
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Palmer v. State, 80-1332
...of cases both separate judgments and separate sentences, concurrent or consecutive are proper. (Emphasis supplied). State v. Peavey, 326 So.2d 461, 463-464 (Fla.2d DCA 1975), cert. denied, 336 So.2d 1184 This court also pointed out in Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981), aff......