Summary
refusing to allow defendant represented by counsel on direct appeal to file pro se motion for rehearing
Summary of this case from Davis v. StateOpinion
No. 89-3220.
March 21, 1991. On Motion for Rehearing April 10, 1991. Rehearing Denied May 22, 1991.
Appeal from the Circuit Court, Escambia County, Frank Bell, J.
Barbara M. Linthicum, Public Defender, Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant raises four issues in this appeal of judgments of conviction and sentences for possession of cocaine, contrary to section 893.13(1)(f), Florida Statutes, and sale or delivery of cocaine, contrary to section 893.13(1)(a), Florida Statutes. We affirm.
Appellant first argues that the use of an informant by police in making the arrest of appellant violated due process under State v. Glosson, 441 So.2d 1178 (Fla. 1st DCA 1983), approved, 462 So.2d 1082 (Fla. 1985), and Hunter v. State, 531 So.2d 239 (Fla. 4th DCA 1988). The informant and the arresting officer, who was also the informant's contact, each testified that the informant was paid a flat fee of $50.00 for his work. There is no indication in the instant case that the informant was paid a fee contingent upon the amount of contraband obtained by police or that the informant was promised deferential treatment by police. Accordingly, we find this issue to be without merit.
Appellant also argues that the dual convictions for simple possession and sale of the same quantum of cocaine violated the guarantee against double jeopardy. The supreme court has recently settled the issue in State v. McCloud, 577 So.2d 939 (Fla. 1991), where it held, in answer to a certified question, that dual convictions for sale and possession (or possession with intent to sell) of the same quantum of contraband does not constitute double jeopardy when the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp. 1988). Accordingly, the convictions in the instant case are affirmed.
The effective date of the amended section 775.021 was October 1, 1988. The offenses in the instant case occurred in November 1988.
Appellant next argues that the state did not file notice to have appellant sentenced as an habitual felony offender. The record as supplemented by the state belies that assertion.
Finally, appellant argues that the habitual felony offender statute, section 775.084(1)(a), Florida Statutes (1988) is unconstitutional on a variety of grounds. All of the arguments raised by appellant have been considered and rejected by courts of this state. See, Arnold v. State, 566 So.2d 37 (Fla.2d DCA 1990); Pittman v. State, 570 So.2d 1045 (Fla. 1st DCA 1990); Akbar v. State, 570 So.2d 1047 (Fla. 1st DCA 1990). See also, Barber v. State, 564 So.2d 1169 (Fla. 1st DCA 1990).
AFFIRMED.
NIMMONS and ZEHMER, JJ., concur.
OPINION ON MOTION TO ALLOW APPELLANT TO FILE PRO SE MOTION FOR REHEARING
This court rendered an opinion in this cause on March 4, 1991, affirming appellant's convictions on drug offenses in the Circuit Court for Escambia County. Throughout this appeal, appellant has been represented by the Public Defender, Second Judicial Circuit.
On behalf of appellant, the Assistant Public Defender in charge of this appeal has filed a motion for extension of time for filing a motion for rehearing, pointing out that the time for filing expires on April 5, 1991. In the motion, the court is advised that counsel does not believe there are any grounds for rehearing, but that appellant has indicated that he wishes to personally file a motion for rehearing.
We find no basis upon which to justify appellant's request. Having availed himself of the services of diligent and competent counsel furnished by the state throughout this proceeding, appellant's request for permission to file his own pro se motions and arguments is the equivalent of a request for a second appeal. Appellant's motion is therefore denied. See, Whitfield v. State, 517 So.2d 23 (Fla. 1st DCA 1987); Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984); and Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980).
NIMMONS and ZEHMER, JJ., concur.