We have for review State v. McCloud, 559 So.2d 1305 (Fla. 2d DCA 1990), in which the district court certified the following as being a question of great public importance:

The district court previously certified this same question in V.A.A. v. State, 561 So.2d 314, 315 (Fla. 2d DCA 1990), approved in part, quashed in part, 577 So.2d 941 (Fla. 1991), in which the text of the certified question appears.

When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp. 1988), is it improper to convict and sentence for both crimes?

We have jurisdiction pursuant to article V. section 3(b)(4) of the Florida Constitution.

We answer the question in the negative and approve in part and quash in part the decision of the Second District.

Anthony McCloud was charged with possession and sale of cocaine in two separate two-count informations. One information charged McCloud with possession and sale of cocaine allegedly committed on August 1, 1988; the other information charged McCloud with possession and sale of cocaine allegedly committed on June 9, 1988. McCloud pled guilty to both counts of sale, and the trial court granted McCloud's motion to dismiss the possession charges on the authority of Carawan v. State, 515 So.2d 161 (Fla. 1987). The state appealed the dismissals. The Second District Court of Appeal affirmed, but certified the question at issue.

In State v. Smith, 547 So.2d 613 (Fla. 1989), this Court held that under a 1988 statutory amendment, the legislature intended that sale or delivery of a controlled substance and possession of that substance constitute separate offenses subject to separate convictions and separate punishments. Ch. 88-131, § 7, Laws of Fla. (amending § 775.021(4), Fla. Stat. (1987)); see State v. Burton, 555 So.2d 1210 (Fla. 1989). However, the offenses at issue in Smith occurred prior to the July 1, 1988 effective date of chapter 88-131, and we declined to apply chapter 88-131 retroactively, finding the case was controlled by Carawan v. State, 515 So.2d at 161 (construing § 775.021(4), Fla. Stat. (1985)). Under Smith and Burton, McCloud's June 9, 1988 offenses clearly fall under the dictates of Carawan, and the trial court properly dismissed the possession charge. With regard to McCloud's August 1, 1988 offenses, we address for the first time whether McCloud can be dually convicted of possession and sale of the same quantum of cocaine under the amended statute.

Section 775.021(4)(b) of the Florida Statutes (Supp. 1988) currently permits dual convictions and sentences for offenses based on one act, subject to certain enumerated exceptions. McCloud asserts that possession and sale of the same quantum of cocaine is an exception under the category of "subsumed" elements in subsection 775.021(4)(b)(3). In other words, McCloud argues that he cannot be convicted of possession of cocaine and sale of the same cocaine because possession is a lesser-included offense of sale.

Section 775.021(4) provides in pertinent part:
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

The state argues that possession is not a lesser-included offense of sale because under section 775.021(4) (codifying the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)), each offense contains an element that the other does not: the crime of sale does not require possession as an element, and the crime of possession does not require sale as an element.

The state further relies on several lower court cases to support its argument. In Portee v. State, 392 So.2d 314, 315 (Fla. 2d DCA 1980), approved, 447 So.2d 219 (Fla. 1984), the court concluded that possession is not a lesser-included offense of sale:

While a seller of marijuana might in the ordinary case also possess the marijuana sold, possession is not an essential aspect of the sale.

Similarly, in Daudt v. State, 368 So.2d 52 (Fla. 2d DCA), cert. denied, 376 So.2d 76 (Fla. 1979), Daudt was an intermediary in a marijuana transaction. The court found he neither actually nor constructively possessed the contraband, so it reversed the possession conviction but affirmed the sale conviction. Cf. State v. Daophin, 533 So.2d 761 (Fla. 1988) (holding that possession is not a lesser-included offense of delivery).

An offense is a lesser-included offense for purposes of section 775.021(4) only if the greater offense necessarily includes the lesser offense. We conclude that because there are situations, as illustrated by the above cases, where a sale can occur without possession, possession is not an essential element of sale and is therefore not a lesser-included offense.

This case, of course, involves a situation where the defendant actually did possess and sell the same quantum of the drug. However, section 775.021(4)(a) specifically states that "offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." (Emphasis added.) Thus, section 775.021(4)(a) precludes the court from examining the evidence to determine whether the defendant possessed and sold the same quantum of cocaine such that possession is a lesser-included offense of sale in any one case.

Accordingly, we approve the district court's decision with regard to the dismissal of McCloud's possession charge of June 9, 1988, but quash that part of the decision affirming the dismissal of McCloud's possession charge of August 1, 1988. We remand for proceedings consistent with this opinion.

It is so ordered.

SHAW, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur.

BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs.

BARKETT, Justice, dissenting.

I dissent for all the reasons expressed in State v. Smith, 547 So.2d 613, 619-22 (Fla. 1989) (Barkett, J., concurring in part, dissenting in part). In addition, I believe that possession is an essential element of sale and therefore is a necessarily included lesser offense under section 775.021(4)(b)(3), Florida Statutes (Supp. 1988).

According to the Florida Standard Jury Instructions in Criminal Cases, at 219, "`[s]ell' means to transfer or deliver something to another person in exchange for money or something of value." Implicit in this definition is the idea that one cannot "transfer or deliver something" of which one does not have either actual or constructive possession. To the extent the district court cases cited by the majority hold otherwise, I simply believe they are wrong. See Judge Cowart's opinion in Davis v. State, 560 So.2d 1231, 1234-39 (Fla. 5th DCA 1990) (Cowart, J., dissenting), review granted, 568 So.2d 435 (Fla. 1990), where he argued that

[a]s "possession" is a separate offense, all of the statutory elements of which are included within (subsumed by) the greater offense of "delivery," and as "delivery" is a separate offense, all of the statutory elements of which are included within ("subsumed by") the greater offense of "selling," it would appear from the amendment of section 775.021(4) by Ch. 88-131, § 7, Laws of Florida, that the legislature does not intend the sale or delivery of a controlled substance and the possession of that substance be treated as separate offenses subject to separate convictions and separate punishments.

Id. at 1238.

I would approve the district court on all counts.

KOGAN, J., concurs.

Summaries of

State v. McCloud

Supreme Court of Florida

Apr 26, 1991

577 So. 2d 939 (Fla. 1991)

holding that an offense is a lesser offense "for purposes of section 775.021 only if the greater offense . . . includes the lesser offense"

Summary of this case from Pizzo v. State

holding that "an offense is a lesser-included offense for purposes of section 775.021 only if the greater offense necessarily includes the lesser offense"

Summary of this case from State v. Florida

holding that "an offense is a lesser-included offense for purposes of section 775.021 only if the greater offense necessarily includes the lesser offense"

Summary of this case from Gordon v. State

holding that an offense is a lesser offense “for purposes of section 775.021 only if the greater offense ... includes the lesser offense”

Summary of this case from Tuttle v. State

holding that an offense is a lesser offense "for purposes of section 775.021 only if the greater offense . . . includes the lesser offense"

Summary of this case from Tuttle v. State

holding it is not a double jeopardy violation for a defendant to be convicted of both sale and possession of the same quantumof cocaine, after the effective date of section 775.021, Florida Statutes (Supp.1988), as each offense contains an element the other does not

Summary of this case from King v. State

holding that possession of cocaine was not a lesser included offense of sale of cocaine and, therefore, defendant could be convicted of both possession and sale of the same quantum of cocaine pursuant to amended dual conviction statute, because situations exist where sale could occur without possession, so that possession was not essential element of crime

Summary of this case from Reeves v. State

In McCloud, the supreme court addressed the certified question of whether convictions "based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband" violate the prohibition against double jeopardy.

Summary of this case from Johnson v. Fla. Dep't of Corr.

In McCloud we rejected the argument that subsection 775.021(4)(b)(3), Florida Statutes (Supp.1988), prohibits dual convictions and sentences for possession and sale of cocaine based on the same act. The same analysis applies to Davis's convictions for possession and delivery of a controlled substance.

Summary of this case from Lopez v. Sec'y

In McCloud, the defendant argued that he could not be convicted of possession of cocaine and sale of the same cocaine because possession is a lesser-included offense of sale.

Summary of this case from State v. Connelly

In McCloud, we held that the legislature intended for possession and sale of the same narcotic to be separate crimes under section 775.021(4), Florida Statutes (Supp. 1988), and thus a trial court may properly convict and sentence for both offenses.

Summary of this case from State v. Oliver

In State v. McCloud, 577 So.2d 939, 940 (Fla. 1991), the supreme court held that the amended statute did not prohibit separate convictions and sentences for the sale of a controlled substance and possession of that same controlled substance.

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Summary of this case from Johnson v. State

accepting the state's argument that “the crime of possession does not require sale as an element” and stating that “a sale can occur without possession” because “possession is not an essential element of sale”

Summary of this case from Tyler v. State

In McCloud, the supreme court addressed the certified question of whether convictions “based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband” violate the prohibition against double jeopardy.

Summary of this case from Johnson v. State

In State v. McCloud, 577 So.2d 939 (Fla. 1991), the Florida Supreme Court held that dual convictions for sale of cocaine and possession of cocaine did not constitute double jeopardy and, thus, the two convictions could stand.

Summary of this case from Thomas v. State

In State v. McCloud, 577 So.2d 939 (Fla. 1991), the court upheld a dual conviction for possession and sale of the same quantum of cocaine.

Summary of this case from State v. Houghtailing

In State v. McCloud, 577 So.2d 939 (Fla. 1991), the defendant had been charged with possession and sale of the same quantum of cocaine.

Summary of this case from Perrin v. State

In McCloud, the court held that pursuant to the 1988 amendment to section 775.021(4), Florida Statutes, possession of cocaine is not a lesser-included offense of sale of the same quantum of the drug, and that a defendant can be convicted of both possession and sale or delivery of the same quantum of drug where the crimes occurred after July 1, 1988, the effective date of section 775.021(4), Florida Statutes (1988 Supp.).

Summary of this case from Hutchinson v. State

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