Opinion
No. 85-1905.
August 7, 1986.
Appeal from the Circuit Court, Marion County, Victor J. Musleh, J.
James B. Gibson, Public Defender, and Michael L. O'Neill, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.
Henry appeals from his convictions for possession of a controlled substance upon the grounds of a state correctional institution, and possession of a controlled substance. He received concurrent sentences for these offenses of eleven and five years. He argues that under the facts of this case he may not be convicted of both charges of possession on double jeopardy grounds. We agree.
§ 944.47(1)(c) § 944.47(1)(a), Fla. Stat. (1985): Count I.
§ 893.13(1)(e), Fla. Stat. (1985): Count II.
In Count I of the amended information, Henry was also charged with violation of section 944.47(1)(a)4.: introduction of a controlled substance upon the grounds of a state correctional institution. However, there are no allegations of facts in the information to support the introduction charge; no evidence to support such charge appears in the record; and the verdict form indicates the jury found Henry guilty of possession on state institution's grounds rather than taking it onto the grounds. Likewise, the scoresheet reveals Henry received no points for this offense. However, the judgment, through an apparent clerical error, states that Henry was convicted of both "Introduction of Contraband 944.47(a)(4)" [sic] and possession, 944.47(1)(c). Therefore, we assume for purposes of this case Henry was neither charged with nor convicted of introduction of contraband (§ 944.47(1)(a)(4), Fla. Stat. (1985)).
The record establishes that Henry was a passenger on a tractor on the grounds of the Marion Correctional Institution. The driver of the tractor was another inmate who had been assigned clean-up duty. A correctional officer observed Henry jump off the tractor, pick up a milk carton, and get back onto the tractor. He became suspicious, stopped the tractor and discovered the milk carton contained marijuana.
Double jeopardy prohibits conviction for two offenses arising out of a single occurrence unless each offense is separate and distinct from the other. Whether two offenses are separate and distinct turns on whether each offense contains an element that the other offense does not contain.
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Rotenberry v. State, 468 So.2d 971 (Fla. 1985); Baker v. State, 456 So.2d 419 (Fla. 1984).
Possession of contraband on the grounds of a state correctional institution occurs where any inmate or any person while on the grounds of a state correctional institution is
in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.
§ 944.47(1)(c), Fla. Stat. (1985).
Possession occurs where any person is 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.
§ 893.13(1)(e), Fla. Stat. (1985).
Both statutes require possession of a controlled substance, and section 944.47(1)(c) requires that the possession occur on the grounds of a state correctional facility. However, section 893.13(1)(e) contains no requirement other than mere possession. The offenses are therefore not separate and distinct and conviction of both violates Henry's double jeopardy rights.
Where conviction for two offenses violates double jeopardy principles, conviction of the less serious offense will be quashed. We therefore quash the conviction under section 893.13(1)(e) and affirm the conviction under section 944.47(1)(c) since possession on the grounds of a state correctional institution is the more serious offense.
State v. Pinder, 375 So.2d 836 (Fla. 1979), receded from on other grounds, State v. Hegstrom, 401 So.2d 1343 (Fla. 1981).
AFFIRMED IN PART; REVERSED IN PART.
UPCHURCH, C.J., concurs.
DAUKSCH, J., concurs specially with opinion.
Appellant was charged with one count of possession of a controlled substance upon the grounds of a state correctional institution and one count of possession of a controlled substance.
This first count of the information essentially tracks F.S. § 944.47(1)(c), which provides:
(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.
This charge does not allege a violation of § 944.47(1)(a)(4) even though the charging document, with a typographical error regarding the statute number, says it is an "Amended Information for: Introduction of Contraband;". Had the state alleged what I suspect were the provable facts, there could have been a valid conviction for both the "introduction" offense and the possession offense. As it is, the state alleged in Count I that appellant possessed cannabis in a correctional facility and in Count II that appellant possessed cannabis, but with no allegation regarding the prison. The proof shows the cannabis in Count I is the same as that in Count II.
Mere possession of cannabis is a lesser included offense under possession of cannabis in a correctional facility because both crimes contain identical elements, except that the greater crime requires proof of one additional element — that the possession was by an inmate of, or any person upon the grounds of, a state correctional institution.
The facts here indicate that appellant was the inside source or courier or contact of an outside provider of marijuana. As such conduit, appellant could probably have been convicted of at least aiding and abetting, a principal in the first degree, the person introducing the cannabis into the prison grounds. § 777.011.
So, although the state entitled its information "Introduction of Contraband", it did not properly charge that crime but only charged a possession crime. Because it charged two types of possession crimes and proved only one possession, then the appellant can only be convicted of one of the charges where the second charge was a lesser included charge under the first.
I concur with the disposition provided by the majority opinion.