IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
REIDEL EUGENIO ARMAS,
Appellant,
v. Case No. 5D17-1528
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed June 29, 2018
Appeal from the Circuit Court
for St. Johns County,
Howard M. Maltz, Judge.
James S. Purdy, Public Defender, and Ali L.
Hansen, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, J.
The issue that we resolve in this case is whether Appellant was placed in double
jeopardy, in violation of the Fifth Amendment to the United States Constitution and Article
I, Section 9 of the Florida Constitution, when he was tried and convicted upon an
information charging him with one count of possession of cannabis in an amount
exceeding 20 grams with the intent to sell or deliver and a second count of manufacturing
cannabis, each being a third-degree felony in violation of section 893.13(1)(a), Florida
Statutes (2015). For the following reasons, we conclude that no double jeopardy violation
occurred, and we therefore affirm Appellant’s convictions.
The pertinent facts of this case are undisputed. During a single search of
Appellant’s residence, law enforcement confiscated thirty-one cannabis plants from a
bedroom and approximately one kilogram of finished, dried loose-leaf cannabis,
packaged into six or seven plastic bags, inside a duffle bag located on the kitchen counter.
Further, the cannabis found in the duffle bag came from the plants found in the bedroom.
Appellant was convicted after trial of possession of cannabis with intent to sell,
manufacture, 1 or deliver and separately for manufacturing of cannabis.
Appellant argues that his dual convictions here violate double jeopardy principles
because each “is predicated on indistinct conduct occurring during a single criminal
episode” with the conduct being Appellant’s “possession of marijuana plants and
packaged product.” The double jeopardy clauses of the federal and state constitutions
prohibit the imposition of multiple punishments for the same criminal offense but do not
prohibit multiple punishments for different offenses arising out of the same criminal
transaction or episode if the Legislature intended to authorize separate punishments.
Roughton v. State,
185 So. 3d 1207, 1209 (Fla. 2016) (citing Valdes v. State,
3 So. 3d
1067, 1069 (Fla. 2009)). The Florida Legislature did so when it enacted section
775.021(4)(a), Florida Statutes (2015), which provides, in pertinent part, that a person
1The record does not show that count one of the information was ever amended
from possession of cannabis with intent to sell or deliver to possession with intent to sell,
manufacture, or deliver. There is also no record explanation or indication why the word
“manufacture” was included in the jury instruction and verdict form on this count.
Nevertheless, this inclusion is not significant to our analysis.
2
The dispositive question here is whether under section 775.021(4)(a) and without
regard to the accusatory pleading or proof at trial, possession of cannabis with intent to
sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when
they arose out of the same criminal transaction and are charged under the same statute.
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.” 447 So. 2d at 239-40. Subsequently to Anderson,
the Florida Supreme Court held in State v. McCloud,
577 So. 2d 939 (Fla. 1991), that
there is no double jeopardy violation for the crimes of sale of cocaine and possession (or
possession with intent to sell) of the same quantum of cocaine, rejecting the argument
that section 775.021(4)(b) prohibits dual convictions and sentences for possession and
sale of cocaine based on the same act because each offense contains an element that
the other does
not. 577 So. 2d at 940-41. Shortly thereafter, the court applied the same
analysis in holding that separate convictions and sentences for possession of a controlled
substance and delivery of the same controlled substance 3 did not violate double jeopardy.
Davis v. State,
581 So. 2d 893, 894 (Fla. 1991).
Appellant was charged with violating section 893.13(1)(a), Florida Statutes (2015),
which provides, in pertinent part, that “a person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.” We agree
with the First District that there is no double jeopardy violation for possession of cannabis
3 The two crimes occurred when the defendant handed an undercover agent one
piece of crack cocaine.
4
The dispositive question here is whether under section 775.021(4)(a) and without
regard to the accusatory pleading or proof at trial, possession of cannabis with intent to
sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when
they arose out of the same criminal transaction and are charged under the same statute.
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.” 447 So. 2d at 239-40. Subsequently to Anderson,
the Florida Supreme Court held in State v. McCloud,
577 So. 2d 939 (Fla. 1991), that
there is no double jeopardy violation for the crimes of sale of cocaine and possession (or
possession with intent to sell) of the same quantum of cocaine, rejecting the argument
that section 775.021(4)(b) prohibits dual convictions and sentences for possession and
sale of cocaine based on the same act because each offense contains an element that
the other does
not. 577 So. 2d at 940-41. Shortly thereafter, the court applied the same
analysis in holding that separate convictions and sentences for possession of a controlled
substance and delivery of the same controlled substance 3 did not violate double jeopardy.
Davis v. State,
581 So. 2d 893, 894 (Fla. 1991).
Appellant was charged with violating section 893.13(1)(a), Florida Statutes (2015),
which provides, in pertinent part, that “a person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance.” We agree
with the First District that there is no double jeopardy violation for possession of cannabis
3 The two crimes occurred when the defendant handed an undercover agent one
piece of crack cocaine.
4
and manufacturing of cannabis because each offense contains an element that the other
does not.
Anderson, 447 So. 2d at 239-40. Appellant provides no persuasive explanation
for how his convictions for manufacturing of cannabis and possession with intent to sell,
manufacture, or deliver the same cannabis can be a double jeopardy violation, yet there
is no double jeopardy violation for the sale of cocaine and possession of the same cocaine
in McCloud or the possession of cocaine and delivery of the same cocaine in Davis, nor
can we discern any.
Appellant separately argues that because he was charged with two violations of
the same statute arising out of a single incident, the test to be applied in determining the
existence of a double jeopardy violation is not the “same elements” test that is utilized
under Blockburger when two separate statutes are being compared, but rather the
“allowable unit of prosecution” test. See Guetzloe v. State,
980 So. 2d 1145 (Fla. 5th
DCA 2008); McKnight v. State,
906 So. 2d 368 (Fla. 5th DCA 2005). This standard
recognizes that double jeopardy is offended if multiple punishments are imposed for the
same offense.
McKnight, 906 So. 2d at 371. In McKnight, the defendant was charged
with two counts of first-degree vehicular homicide under section 782.071(1)(b), Florida
Statutes (2001), for the death of two separate victims involved in a single accident.
Id. at
370. We held that the text of that specific statute, in conjunction with the State’s historic
treatment of homicide crimes, made clear the Legislature’s intent that each victim
constituted a separate allowable unit of prosecution and, therefore, the defendant’s
separate convictions for vehicular homicide were not proscribed by double jeopardy
principles.
Id. at 373-74. Subsequently, in Guetzloe, we held that one mass mailing by
5
the defendant in violation of Florida’s Electioneering Communication Statute 4 constituted
only one “allowable unit of prosecution” that the legislature intended to punish and that
double jeopardy barred multiple prosecutions for a single distribution of electioneering
communications. 980 So. 2d at 1147-48.
We distinguish both McKnight and Guetzloe because in those cases, we were
addressing multiple violations of the same offense. Here, Appellant’s two criminal
offenses are distinguishable discrete acts that are not the same offense, even though
both are charged under section 893.13(1)(a), because this statute proscribes alternative
or separate forms of criminal conduct. As previously discussed, the Florida Supreme
Court had no difficulty in applying the “separate offense” analysis under section
775.021(4)(a) in McCloud, holding that there was no double jeopardy violation for
convictions of the separate offenses of sale of cocaine and possession of the same
cocaine, or in Davis, concluding that there was no double jeopardy violation for the
delivery of cocaine and the possession of the same cocaine with the intent to sell or
deliver because they were separate offenses. See also State v. Oliver,
581 So. 2d 1304,
1305 (Fla. 1991) (approving separate convictions for possession with intent to sell
cocaine and sale of the same cocaine arising out of a single transaction). Moreover,
under Roughton, our double jeopardy analysis pursuant to section 775.021(4) must “be
conducted without regard to the accusatory pleading or the proof adduced at trial, even
where an alternative conduct statute is
implicated.” 185 So. 3d at 1211. Simply put,
manufacturing of cannabis and possession of cannabis with intent to manufacture are
4 § 106.1439, Fla. Stat. (2004).
6
separate offenses under section 775.021(4)(a), even though they have now been codified
as crimes under the same subsection of section 893.13.
Accordingly, we hold that Appellant’s dual convictions, even though arising out of
the same criminal transaction or episode and involving the same cannabis, do not violate
the prohibition against double jeopardy. Additionally, none of the three exceptions
contained in section 775.021(4)(b) is applicable here because neither of Appellant’s
offenses is a lesser included offense of the other, they do not have identical elements of
proof, and they are not degrees of the same offense. 5
AFFIRMED.
COHEN, C.J., and BERGER, J., concur.
5 This exception under section 775.021(4)(b)2. prohibits a defendant from being
punished for violating two or more degrees of the same offense as provided by statute.
For example, the theft statute identifies three degrees of grand theft and two degrees of
petit theft. See § 812.014, Fla. Stat. (2005). The homicide statute identifies three degrees
of murder, see
id. § 782.04, and the arson statute has two separate degrees. See
id. §
806.01; see also
Valdes, 3 So. 3d at 1076 (quoting State v. Paul,
934 So. 2d 1167, 1177-
78 (Fla. 2006) (Cantero, J., concurring)).
7
