Summary
In Smith v. State, 524 So.2d 461 (Fla. 4th DCA 1988), approved, State v. Smith, 547 So.2d 613 (Fla. 1989), the court held that multiple punishment was impermissible, relying on Fletcher and Carawan, and acknowledging conflict with the Second District Court of Appeal's opinion in Dukes v. State, 464 So.2d 582 (Fla. 2d DCA 1985).
Summary of this case from Wheeler v. StateOpinion
Nos. 87-0007, 87-0085 to 87-0090, 87-0159, 87-0549 and 87-0550.
April 13, 1988. Rehearing Denied May 25, 1988.
Appeal from the Circuit Court, Okeechobee County, Dwight L. Geiger and William L. Hendry, JJ.
Richard L. Jorandby, Public Defender, Mark A. Jones and Thomas F. Ball, III, Asst. Public Defenders, West Palm Beach, for appellants.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Diane E. Leeds, Asst. Atty. Gen., West Palm Beach, for appellee.
Reversed in part and remanded with instructions to vacate appellants' convictions and sentences for possession of cocaine with intent to sell. Under the facts of this case we do not believe the appellants could properly be convicted and sentenced for both the sale and possession with intent to sell of the same cocaine sold to undercover police agents in street transactions videotaped by other police officials. See Fletcher v. State, 428 So.2d 667 (Fla. 1st DCA 1982), rev. denied, 430 So.2d 452 (Fla. 1983), and Carawan v. State, 515 So.2d 161 (Fla. 1987). We acknowledge that the Fletcher decision and our holding herein are in direct conflict with the holding in Dukes v. State, 464 So.2d 582 (Fla.2d DCA 1985), so that the parties may have this issue resolved by the Florida Supreme Court.
ANSTEAD, DELL and STONE, JJ., concur.