Williams v. State, 96-2526

• Decision Date: 10 September 1997
• Docket Number: No. 96-2526,96-2526
• Citation: 702 So.2d 512
• Parties: 22 Fla. L. Weekly D2139, 23 Fla. L. Weekly D17 Eddie J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 512

702 So.2d 512

22 Fla. L. Weekly D2139, 23 Fla. L. Weekly D17

Eddie J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 96-2526.

District Court of Appeal of Florida,

Fourth District.

Sept. 10, 1997.

Opinion Denying Rehearing

Dec. 17, 1997.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; L.B. Vocelle, Judge; L.T. Case No. 95-1210CFA.

Richard L. Jorandby, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

DELL, Judge.

Eddie J. Williams appeals his conviction of possessing cocaine with intent to sell and trafficking 200 grams or more of cocaine. Only one of the four issues raised by appellant has merit.

Appellant contends that the trial court failed to comply with the dictates of Coney v. State, 653 So.2d 1009 (Fla.), cert. denied,, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995). During voir dire, appellant's counsel told the judge that appellant waived his right to be present at the exercise of peremptory challenges. However, the trial court did not certify whether appellant knowingly, intelligently, and voluntarily waived this right. Therefore, based on the authority of Coney, we reverse and remand for a new trial. See Ellis v. State, 696 So.2d 904, (Fla. 4th DCA 1997); Chavez Jr. v. State, 698 So.2d 284 (Fla. 3d DCA 1997); Anderson v. State, 697 So.2d 878, (Fla. 5th DCA 1997). However, because Coney affects a large number of cases, we certify the following question as one of great public importance:

WHETHER THE 1997 AMENDMENT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.180(b) MAY BE RETROACTIVELY APPLIED?

REVERSED AND REMANDED.

GUNTHER, J., and HENNING, PATTI ENGLANDER, Associate Judge, concur.

ON MOTION FOR REHEARING

PER CURIAM.

We deny appellant's motion for rehearing, but write only to address appellant's contention that Gibbs v. State, 698 So.2d 1206 (Fla.1997), requires reversal of his convictions for trafficking possession under section 893.135(1)(b)2, Florida Statutes (1995) and possession with intent to sell under section 893.13(6)(a), Florida Statutes, based on double jeopardy grounds.

In Gibbs, the supreme court did not recede from State v. McCloud, 577 So.2d 939 (Fla.1991). The court stated,

[W]e held in McCloud that statutes prohibiting sale and alternatively prohibiting possession contain different elements for purposes of double jeopardy analysis.... [W]e recognize that an alternative conduct statute, such as the cocaine trafficking statute, requires an analysis that breaks the conduct elements into the specific alternative conduct which is in the other statute being compared.... [I]f prosecution is for the same conduct under both statutes, a conviction under more than one of the statutes is a violation of double jeopardy principles.

Gibbs, 698 So.2d at 1209-10.

In this case, the specific elements of the alternative conduct statutes of trafficking possession and possession with intent to sell must be compared. Upon analysis, it is evident that the...