Summary
In Anderson v. State, 447 So.2d 236 (Fla. 1st DCA 1983), the First District Court of Appeal held that convictions for both the manufacture of cannabis and the possession of the same cannabis did not violate double jeopardy because "the crime of ‘manufacture’ does not require proof of possession."
Summary of this case from Armas v. StateOpinion
Nos. AO-281, AO-282.
July 18, 1983. Rehearing Denied March 13, 1984.
Appeal from the Circuit Court, Levy County, Osee R. Fagan, J.
Floyd L. Vipperman, Jr., and M. Kathleen Wright, Gainesville for appellants.
John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
The issue before us in these consolidated appeals is whether the appellants were placed in double jeopardy in violation of the federal and state Constitutions when they were tried upon an information charging them in one count with possession of a controlled substance and in another count with manufacture or possession with intent to distribute a controlled substance. We hold that appellants' double jeopardy rights were not violated and affirm the judgment of the trial court.
That count alleged a violation of Section 893.13(1)(e), Florida Statutes (1981), which provides:
It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 750.084.
That count alleged a violation of Section 893.13(1)(a), which provides in part:
Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
* * * * * *
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The trial court denied appellants' motion to dismiss the possession count on double jeopardy grounds, ruling that possession is not the "same" offense as manufacture or possession with intent to distribute. The court allowed both counts to go to the jury, and a guilty verdict was returned as to each count. Appellants were adjudged guilty of the charge of unlawful manufacture or possession of cannabis with intent to distribute and were sentenced to one year in jail and five years probation. The court did not adjudicate appellants guilty or sentence them on the possession charge.
According to the Supreme Court's recent opinion in Bell v. State, 437 So.2d 1057 (Fla. 1983), an individual may be tried upon an information charging two offenses, one of which is a lesser-included offense of the other, without violating the prohibition against double jeopardy as long as the trial judge instructs the jury that it can return a guilty verdict only as to one of the two offenses. According to Bell, the double jeopardy clause protects a defendant from being convicted and sentenced on two offenses which are the "same" for double jeopardy purposes. In the present case, the trial judge did not enter an adjudication of guilt on the possession charge; therefore, appellants' double jeopardy rights have not been violated.
Appellants have correctly noted that possession of cannabis is not a lesser-included offense of manufacture or possession of cannabis with intent to distribute because both offenses are punishable as third-degree felonies. Ray v. State, 403 So.2d 956 (Fla. 1981). However, as noted by the Supreme Court in Bell:
For double jeopardy purposes, lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense. 437 So.2d at 1058.
In other words, for double jeopardy purposes, two offenses are considered to be the "same" offense if one of the offenses fails to require proof of an element not required by the other offense. Although possession is not a lesser-included offense of manufacture or possession with intent to distribute, because both offenses are punishable as third-degree felonies, they are considered the "same" offense for double jeopardy purposes.
Although the trial judge committed error in allowing both counts to go to the jury without an instruction that they could return a guilty verdict only as to one of the counts, this error was harmless since appellants were adjudicated guilty and sentenced on only one charge.
Our independent review of the record reveals that the trial court has not finally disposed of the possession charge against appellants. We affirm the judgment and sentence against appellants on the count of manufacture or possession with intent to distribute; however, we remand to the trial court for entry of an appropriate order dismissing Count I of the information.
ROBERT P. SMITH, Jr., C.J., and WENTWORTH, J., concur.
ON MOTION FOR REHEARING
Appellants have filed a motion for rehearing, and appellee, State of Florida, has filed a motion for modification of our decision filed July 18, 1983. Both parties take issue with our application of Bell v. State, 437 So.2d 1057 (Fla. 1983), to the facts of this case.
Appellant argues that Borges v. State, 415 So.2d 1265 (Fla. 1982), is controlling since the two offenses charged against appellants are actually "the same" offense under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and that Bell v. State is inapplicable because it deals with one charge which is a lesser-included offense of the other charge.
Appellee contends that the result of our decision is correct but that we should modify our opinion "by deleting all reference to whether separate convictions and sentences would have been improper, and should merely affirm the only judgment and sentence entered against the defendants, to wit: the unlawful manufacture of a controlled substance." The appellee argues that Bell v. State is distinguishable because the present case does not deal with one offense that is a lesser-included offense of the other, and that this case is controlled by the Supreme Court's decision in Smith v. State, 430 So.2d 448 (Fla. 1983).
In Bell, the court set forth the following rule:
If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally `the same offense' and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events.
437 So.2d at 1060. This rule applies whether the double jeopardy issue arises in the context of lesser-included offenses or offenses of equal dignity charged in the same or separate indictments. Moreover, Bell makes it clear that if double jeopardy is in fact shown, no longer is it sufficient to merely vacate the sentence and let the multiple convictions stand.
According to the Supreme Court's opinion in Smith, proof of sale of a controlled substance does not require proof of possession. Therefore, the crimes of sale of a controlled substance [§ 893.13(1)(a), Fla. Stat.] and possession of a controlled substance [§ 893.13(1)(e), Fla. Stat.] are not the "same offense" for double jeopardy purposes, and the defendant in Smith could be convicted and sentenced for both sale and possession of a controlled substance.
The key question in the present case is whether proof of the manufacture of a controlled substance requires proof of possession. According to the Schedule of Lesser Included Offenses in Florida Standard Jury Instructions in Criminal Cases (2d Ed., 1981), the crime of possession under Section 893.13(1)(e), is a necessarily included offense of the crimes listed in Section 893.13(1)(a) only if possession is charged under Section 893.13(1)(a).
In the present case, appellants were charged in count one with "actual or constructive possession" of cannabis, in contravention of Section 893.13(1)(e) and in count two with having "unlawfully and knowingly manufactur[ed] or possess[ed] with intent to distribute" cannabis in contravention of Section 893.13(1)(a). Our opinion assumed that appellants were adjudged guilty as charged in count two without distinguishing "manufacture" and "possession with intent to distribute" as separate offenses. The appellee's motion correctly points out that appellants were adjudicated guilty only of "manufacture" and not of "possession with intent to distribute."
Appellants, in the statement of the case and facts in their brief, simply state that appellants were found guilty as charged in count two without distinguishing between these two offenses. The appellee's brief unqualifiedly accepted the appellant's statement of the case and facts, and we accepted that statement without further inquiry. Appellant's brief did not comment that any distinction should be made between these two offenses charged in the same count of the information.
While the Schedule of Lesser Included Offenses makes it clear that "possession" under 13(1)(e) is a necessarily included offense of "possession with intent to distribute" under 13(1)(a), it is also clear that "possession" is not a necessarily included offense of "manufacture" under 13(1)(a) because the crime of "manufacture" does not require proof of possession. Accordingly, appellants could have been convicted and sentenced for both the manufacture of cannabis under Section 893.13(1)(a) and the possession of the same cannabis under Section 893.13(1)(e) without violating the double jeopardy clause. Smith v. State, supra.
The standard jury instruction on "manufacture" of a controlled substance in violation of Section 893.13(1)(a) does not include possession as an essential element.
We also note that although both parties on appeal have represented to us that appellants were adjudicated guilty only on the charge in count two, there are two conflicting judgments contained in the record on appeal. Pursuant to the form simply entitled "JUDGMENT," the standard judgment form now widely used throughout the state, the appellants were adjudicated guilty of the "manufacture" charged in count two. However, the trial judge also executed and filed a second form entitled "Judgment, Sentence and Order Placing Defendant on Probation During Portion of Sentence," which purports to adjudicate appellants guilty of both the "manufacture" charge in count two and the "possession" charge in count one. Upon remand, the trial judge is instructed to clarify his intent by modifying or vacating one of these conflicting judgments. If the purpose of the second form of judgment was to set out the conditions of probation being imposed, we suggest that such conditions be set forth in a separate order appropriately titled and specifying such conditions.
Appellants' motion for rehearing is DENIED. The appellee's motion for modification is GRANTED, and our opinion is modified to the extent that it indicated appellants could not be convicted and sentenced for both manufacture and possession. This case is REMANDED for proceedings necessary to clarify the judgment.
WENTWORTH and THOMPSON, JJ., concur.