Opinion
Case No. 2D19-2603
03-12-2021
Andrew CHUMNEY, Appellant, v. STATE of Florida, Appellee.
Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
LaROSE, Judge.
Andrew Chumney appeals his judgment and sentences entered following the jury's guilty verdicts on a variety of drug-related offenses. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A) ; 9.140(b)(1)(D), (F). The parties agree that because Mr. Chumney's convictions for possession of cannabis over twenty grams (count two) and possession of cannabis with intent to sell (count three) encompass the same quantum of marijuana, they violate double jeopardy. See Rodriguez v. State, 958 So. 2d 469, 469 (Fla. 2d DCA 2007) ("Antonio Rodriguez asserts that a violation of his constitutional guarantees against double jeopardy occurred when he was convicted of and sentenced for possession of marijuana with intent to sell and possession of the same quantum of marijuana. We agree." (footnote omitted)); Sims v. State, 793 So. 2d 1153, 1153 (Fla. 4th DCA 2001) ("We reverse the final judgment adjudicating Sims guilty of both possession with intent to sell/deliver cannabis and possession of more than twenty grams of cannabis, as such amounted to double jeopardy."); Thompson v. State, 979 So. 2d 356, 358 (Fla. 5th DCA 2008) ("Thompson is ... correct in his assertion that convictions for both possession of cannabis in excess of twenty grams and possession of cannabis with intent to sell violate the proscriptions against double jeopardy when, as in the instant case, they are related to the same cannabis." (citations omitted)); Crites v. State, 959 So. 2d 1265, 1266-67 (Fla. 5th DCA 2007) (holding that convictions for possession of cannabis with the intent to sell or deliver and possession of more than twenty grams of cannabis arising out of a single incident of possession violated double jeopardy); see also Keene v. State, 600 So. 2d 513, 513 (Fla. 2d DCA 1992) ("Possession is a lesser-included offense of possession with intent to sell the same quantum of contraband." (citing Albury v. State, 585 So. 2d 509 (Fla. 3d DCA 1991) )).
We, too, agree. Therefore, we reverse and remand for the trial court to vacate Mr. Chumney's judgment and sentence for possession of cannabis over twenty grams. See Rodriguez, 958 So. 2d at 470-71 ("Accordingly, we reverse the conviction for possession of marijuana and vacate the sentence for it."); Thompson, 979 So. 2d at 358 ("Accordingly, the conviction for possession of cannabis over twenty grams is reversed and the sentence imposed for that offense is vacated."). In all other respects, we affirm Mr. Chumney's judgment and sentences.
Affirmed in part, reversed in part, and remanded with instructions to vacate the judgment and sentence for possession of cannabis over twenty grams.
MORRIS and ATKINSON, JJ., Concur.