Weeks v. State, No. 71-146

• Decision Date: 19 October 1971
• Docket Number: No. 71-146
• Citation: 253 So.2d 459
• Parties: Daniel WEEKS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 459

253 So.2d 459

Daniel WEEKS, Appellant, v. The STATE of Florida, Appellee.

No. 71-146.

District Court of Appeal of Florida, Third District.

Oct. 19, 1971.

Phillip A. Hubbart, Public Defender, and Lewis S. Kimler, Asst. Public Defender, Tom O. Watkins, Public Defender, Key West, for appellant.

Robert L. Shevin, Atty. Gen., and Arnold Ginsberg, Legal Intern, for appellee.

Before CHARLES CARROLL, HENDRY and BARKDULL, JJ.

HENDRY, Judge.

Defendant appeals the convictions and sentences entered pursuant to a jury verdict finding him guilty of narcotic violations. The defendant was charged by an information of two counts. The first count charged him with possession of amphetamines and the second count charged him with the sale of amphetamines in violation of § 404.02(1) and (4), Fla.Stat., 1969, F.S.A. The jury found him guilty as to both counts of the information. The court imposed sentences of eighteen months on count one and two years on count two. The sentences were to run concurrently.

The evidence shows that the possession and sale arose out of the same incident and occurred at the same time and place.

The defendant contends that the trial court erred in sentencing him for both possession and sale of the drugs when both arose out of the same transaction. We agree.

Only one sentence should have been imposed on the defendant and it should have been for the highest offense charged, i. e., the sale of amphetamines. Yost v. State, Fla.App.1971, 243 So.2d 469.

Defendant's next contention is that the trial court erred in denying his motion for a new trial that set forth allegations supported by affidavits that new and material evidence of unknown witness has been discovered which would probably change the verdict. The motion further alleged that the defendant could not with reasonable diligence have discovered and produced upon trial the unknown witnesses.

The trial court in denying the motion for new trial stated:

'5. That the affidavits submitted at the time of this hearing bears upon the creditability of the State's principal witness in respect to his own use of marijuana which he denied from the witness stand and said answer was not pursued further by counsel even though affiants were all minors and known to counsel prior to and at time of trial nor was permission asked or obtained from their natural guardians permitting them to testify without benefit of counsel in respect to their rights; counsel having the opportunity of deposing the principal's witnesses on January 14, 1971, fifteen days before trial. It is the Court's considered opinion that whether or not the witness was a user of marijuana would not have destroyed his creditability of the witness to the jury's consideration of both the testimony of the Defendant and his witnesses. Further, that after a very thorough examination and investigation of the three affiants by this Court, their creditability is questionable and appears to be a plan of mutual assistance in time of need through past association.

'The affidavits...