Opinion
No. 89-1901.
August 13, 1990.
Appeal from the Circuit Court, Suwannee County, L. Arthur Lawrence, Jr., J.
William R. Slaughter, II of Slaughter and Slaughter, Live Oak, for appellant.
Robert A. Butterworth, Atty. Gen., and Cynthia Shaw, Asst. Atty. Gen., Tallahassee, for appellee.
We affirm the trial court's denial of the motion to suppress as the evidence supports a finding that the challenged identification was reliable and without error.
The trial court erred, however, in imposing judgment of conviction for both sale of cocaine and possession of cocaine with intent to sell in violation of section 893.13(1)(a), Florida Statutes (1987), under the circumstances of this case because the elements of the crime of sale of cocaine subsume the elements of the crime of possession of cocaine with intent to sell. State v. McCloud, 559 So.2d 1305 (Fla. 2d DCA 1990). Our construction of section 893.13(1)(a) to the effect that sale and possession with intent to sell is but one offense is not affected by the 1988 amendment to section 775.021, Florida Statutes, adding subsection 4(b). Wheeler v. State, 549 So.2d 687 (Fla. 1st DCA 1989) (en banc). Accordingly, we affirm the conviction imposed on the sale count and vacate the conviction imposed on the possession count. For purposes of review by the supreme court, we certify the following question as being one of great public importance:
Ch. 88-131, § 7, Laws of Florida.
WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND IN VIOLATION OF SECTION 893.13(1)(A) AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP. 1988), IS IT UNLAWFUL TO CONVICT AND SENTENCE FOR BOTH CRIMES?Compare V.A.A. v. State, 561 So.2d 314 (Fla. 2d DCA 1990); State v. McCloud, 559 So.2d 1305 (Fla. 2d DCA 1990).
SMITH, J., concurs.
BOOTH, J., concurs in part and dissents in part, with opinion.
I would affirm both of appellant's convictions and sentences. This court's decision in Wheeler, supra, prohibits punishing a defendant for both sale and possession with intent to sell "the same controlled substance in the same transaction." (549 So.2d at 688). Appellee correctly states that the facts here fall outside the Wheeler prohibition since the evidence presented to the jury showed that appellant was in possession of more crack than he sold and that after the sale, appellant retained the larger piece of crack from which he cut the portion sold to the informant. The informant remembered the incident because of the size of the rock of cocaine involved. The following testimony was elicited at trial:
[Testimony of Jackson on direct examination]
Q. Okay. When he sold you a piece of rock cocaine, did he have anything left?
A. Yes, sir. He had a piece about that long and then about that thick (indicating).
Q. Okay. And how did he do it so that he gave you some of that?
A. He took a — he had a little razor, and he took it and he cut me a piece off.
[Testimony of Jackson on cross-examination]
Q. Now, the piece that was left over, you said that was half as big as his thumb, or your thumb?
A. My thumb.
Q. Okay. And the piece that you identified here today, that's a small piece, right?
A. Yes, sir.
[Testimony of State's expert witness on cross-examination]
Q. A piece of rock that was the size — we'll say of the size of your thumb, how much would that weigh?
A. I would say approximately one and a half grams.
Q. Do you know how many sizes of rock like this would be in that larger piece?
A. I would say approximately fifteen.
Q. Fifteen?
A. Yes, sir.
On this evidence, the jury was entitled to find defendant guilty of Count II when he sold the smaller piece of crack to Jackson and that he violated Count I when, at the conclusion of that transaction, he retained the larger piece of crack with intent to sell.
Further, the jury heard the tape-recording of the drug transaction, wherein appellant told Jackson that he had other quantities of crack for sale. The substance of the recorded conversation is testified to by Jackson at the suppression hearing, during which the tape was held admissible (record pp. 55-57). The tape is not included in the record on appeal, and its admission is not an issue on appeal.
I would agree with appellee's contention that the Legislature intends to punish separately each of the two evils involved in drug deals such as evidenced here: (1) possession of narcotics for sale, i.e., having a readily-available supply of drugs on hand, which facilitates the dealer's ability to make a quick exchange and avoid detection; and (2) selling narcotics, thereby putting them into the stream of commerce to the great detriment of the user and of the public. Expansion of Wheeler into transactions such as this is unwarranted.