From Casetext: Smarter Legal Research

London v. State

District Court of Appeal of Florida, Fourth District
May 20, 1977
347 So. 2d 639 (Fla. Dist. Ct. App. 1977)

Summary

finding a defendant's prior conviction under section 893.13 does not bar a conviction under section 944.47 based upon the same facts

Summary of this case from Hernandez v. Sec'y, DOC

Opinion

No. 76-1055.

May 20, 1977.

Appeal from the Circuit Court, Osceola County, Cecil H. Brown, J.

Richard L. Jorandby, Public Defender, Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, and Jerry Schwarz, Legal Intern, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.


Defendant seeks review of his conviction for unlawfully bringing cannabis upon the grounds of a penal institution in violation of Section 944.47, Florida Statutes (1975). The issue is whether the defendant was placed in double jeopardy because of his previous conviction for possession of the same cannabis in violation of Section 893.13, Florida Statutes (1975).

In determining whether a plea of double jeopardy can be sustained the test is whether the second prosecution places the defendant twice in jeopardy for the same offense, and not whether he has been tried before upon the same acts, circumstances or situation, the facts of which may sustain a conviction for a separate offense. State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944). To constitute double jeopardy, it is not enough that the second prosecution arises out of the same facts as the first, but the second prosecution must also be for the same offense. State v. Shaw, 219 So.2d 49 (Fla.2d DCA 1969). However, when a defendant is placed in jeopardy for a lesser degree of an offense and is thereafter charged with a higher degree of the same offense, he has been placed in double jeopardy and the subsequent prosecution is barred. Southworth v. State, 98 Fla. 1184, 125 So. 345 (1929); State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485 (1935); Greene v. City of Gulfport, 103 So.2d 115 (Fla. 1958).

The defendant contends that possession of marijuana is a lesser included offense or lesser degree of the offense of bringing cannabis upon the grounds of a penal institution and therefore he had been placed in double jeopardy. We reject this contention and hold that each is a separate offense. Defendant's prior conviction under Section 893.13 does not bar a subsequent prosecution under Section 944.47 based upon the same facts. Compare, State v. Bowden, supra, State v. Shaw, supra, and State v. Stiefel, 256 So.2d 581 (Fla.2d DCA 1972), State v. Heisterman, 343 So.2d 1272 (Fla. 1977).

AFFIRMED.

DOWNEY and ALDERMAN, JJ., and GREEN, OLIVER L., Associate Judge, concur.


Summaries of

London v. State

District Court of Appeal of Florida, Fourth District
May 20, 1977
347 So. 2d 639 (Fla. Dist. Ct. App. 1977)

finding a defendant's prior conviction under section 893.13 does not bar a conviction under section 944.47 based upon the same facts

Summary of this case from Hernandez v. Sec'y, DOC

In London, on which we earlier relied, the Fourth District Court of Appeal concluded that London's prior conviction for possession of marijuana under section 893.13 did not bar his subsequent prosecution under section 944.47, Florida Statutes (1975), making the introduction of cannabis into a penal institution a felony.

Summary of this case from DEES v. STATE
Case details for

London v. State

Case Details

Full title:HILLARD JERRY LONDON, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: May 20, 1977

Citations

347 So. 2d 639 (Fla. Dist. Ct. App. 1977)

Citing Cases

Salas v. State

Accord Rose v. State, 507 So.2d 630 (Fla. 5th DCA 1987); Kahlenberg v. State, 404 So.2d 1135 (Fla. 4th DCA…

Parrish v. State

944.47(1)(c), Florida Statutes (1981). We are aware of Dees v. State, 397 So.2d 1145 (Fla. 2d DCA 1981) and…