         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED

REIDEL EUGENIO ARMAS,

             Appellant,

 v.                                                     Case No. 5D17-1528

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed June 29, 2018

Appeal from the Circuit Court
for St. Johns County,
Howard M. Maltz, Judge.

James S. Purdy, Public Defender, and Ali L.
Hansen, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

      The issue that we resolve in this case is whether Appellant was placed in double

jeopardy, in violation of the Fifth Amendment to the United States Constitution and Article

I, Section 9 of the Florida Constitution, when he was tried and convicted upon an

information charging him with one count of possession of cannabis in an amount

exceeding 20 grams with the intent to sell or deliver and a second count of manufacturing
cannabis, each being a third-degree felony in violation of section 893.13(1)(a), Florida

Statutes (2015). For the following reasons, we conclude that no double jeopardy violation

occurred, and we therefore affirm Appellant’s convictions.

       The pertinent facts of this case are undisputed.        During a single search of

Appellant’s residence, law enforcement confiscated thirty-one cannabis plants from a

bedroom and approximately one kilogram of finished, dried loose-leaf cannabis,

packaged into six or seven plastic bags, inside a duffle bag located on the kitchen counter.

Further, the cannabis found in the duffle bag came from the plants found in the bedroom.

Appellant was convicted after trial of possession of cannabis with intent to sell,

manufacture, 1 or deliver and separately for manufacturing of cannabis.

       Appellant argues that his dual convictions here violate double jeopardy principles

because each “is predicated on indistinct conduct occurring during a single criminal

episode” with the conduct being Appellant’s “possession of marijuana plants and

packaged product.” The double jeopardy clauses of the federal and state constitutions

prohibit the imposition of multiple punishments for the same criminal offense but do not

prohibit multiple punishments for different offenses arising out of the same criminal

transaction or episode if the Legislature intended to authorize separate punishments.

Roughton v. State, 185 So. 3d 1207, 1209 (Fla. 2016) (citing Valdes v. State, 3 So. 3d

1067, 1069 (Fla. 2009)). The Florida Legislature did so when it enacted section

775.021(4)(a), Florida Statutes (2015), which provides, in pertinent part, that a person



       1The record does not show that count one of the information was ever amended
from possession of cannabis with intent to sell or deliver to possession with intent to sell,
manufacture, or deliver. There is also no record explanation or indication why the word
“manufacture” was included in the jury instruction and verdict form on this count.
Nevertheless, this inclusion is not significant to our analysis.


                                             2
       The dispositive question here is whether under section 775.021(4)(a) and without

regard to the accusatory pleading or proof at trial, possession of cannabis with intent to

sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when

they arose out of the same criminal transaction and are charged under the same statute.

In Anderson v. State, 447 So. 2d 236 (Fla. 1st DCA 1983), the First District Court of

Appeal held that convictions for both the manufacture of cannabis and the possession of

the same cannabis did not violate double jeopardy because “the crime of ‘manufacture’

does not require proof of possession.” 447 So. 2d at 239-40. Subsequently to Anderson,

the Florida Supreme Court held in State v. McCloud, 577 So. 2d 939 (Fla. 1991), that

there is no double jeopardy violation for the crimes of sale of cocaine and possession (or

possession with intent to sell) of the same quantum of cocaine, rejecting the argument

that section 775.021(4)(b) prohibits dual convictions and sentences for possession and

sale of cocaine based on the same act because each offense contains an element that

the other does not. 577 So. 2d at 940-41. Shortly thereafter, the court applied the same

analysis in holding that separate convictions and sentences for possession of a controlled

substance and delivery of the same controlled substance 3 did not violate double jeopardy.

Davis v. State, 581 So. 2d 893, 894 (Fla. 1991).

       Appellant was charged with violating section 893.13(1)(a), Florida Statutes (2015),

which provides, in pertinent part, that “a person may not sell, manufacture, or deliver, or

possess with intent to sell, manufacture, or deliver, a controlled substance.” We agree

with the First District that there is no double jeopardy violation for possession of cannabis




       3 The two crimes occurred when the defendant handed an undercover agent one
piece of crack cocaine.


                                             4
       The dispositive question here is whether under section 775.021(4)(a) and without

regard to the accusatory pleading or proof at trial, possession of cannabis with intent to

sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when

they arose out of the same criminal transaction and are charged under the same statute.

In Anderson v. State, 447 So. 2d 236 (Fla. 1st DCA 1983), the First District Court of

Appeal held that convictions for both the manufacture of cannabis and the possession of

the same cannabis did not violate double jeopardy because “the crime of ‘manufacture’

does not require proof of possession.” 447 So. 2d at 239-40. Subsequently to Anderson,

the Florida Supreme Court held in State v. McCloud, 577 So. 2d 939 (Fla. 1991), that

there is no double jeopardy violation for the crimes of sale of cocaine and possession (or

possession with intent to sell) of the same quantum of cocaine, rejecting the argument

that section 775.021(4)(b) prohibits dual convictions and sentences for possession and

sale of cocaine based on the same act because each offense contains an element that

the other does not. 577 So. 2d at 940-41. Shortly thereafter, the court applied the same

analysis in holding that separate convictions and sentences for possession of a controlled

substance and delivery of the same controlled substance 3 did not violate double jeopardy.

Davis v. State, 581 So. 2d 893, 894 (Fla. 1991).

       Appellant was charged with violating section 893.13(1)(a), Florida Statutes (2015),

which provides, in pertinent part, that “a person may not sell, manufacture, or deliver, or

possess with intent to sell, manufacture, or deliver, a controlled substance.” We agree

with the First District that there is no double jeopardy violation for possession of cannabis




       3 The two crimes occurred when the defendant handed an undercover agent one
piece of crack cocaine.


                                             4
and manufacturing of cannabis because each offense contains an element that the other

does not. Anderson, 447 So. 2d at 239-40. Appellant provides no persuasive explanation

for how his convictions for manufacturing of cannabis and possession with intent to sell,

manufacture, or deliver the same cannabis can be a double jeopardy violation, yet there

is no double jeopardy violation for the sale of cocaine and possession of the same cocaine

in McCloud or the possession of cocaine and delivery of the same cocaine in Davis, nor

can we discern any.

       Appellant separately argues that because he was charged with two violations of

the same statute arising out of a single incident, the test to be applied in determining the

existence of a double jeopardy violation is not the “same elements” test that is utilized

under Blockburger when two separate statutes are being compared, but rather the

“allowable unit of prosecution” test. See Guetzloe v. State, 980 So. 2d 1145 (Fla. 5th

DCA 2008); McKnight v. State, 906 So. 2d 368 (Fla. 5th DCA 2005). This standard

recognizes that double jeopardy is offended if multiple punishments are imposed for the

same offense. McKnight, 906 So. 2d at 371. In McKnight, the defendant was charged

with two counts of first-degree vehicular homicide under section 782.071(1)(b), Florida

Statutes (2001), for the death of two separate victims involved in a single accident. Id. at

370. We held that the text of that specific statute, in conjunction with the State’s historic

treatment of homicide crimes, made clear the Legislature’s intent that each victim

constituted a separate allowable unit of prosecution and, therefore, the defendant’s

separate convictions for vehicular homicide were not proscribed by double jeopardy

principles. Id. at 373-74. Subsequently, in Guetzloe, we held that one mass mailing by




                                             5
the defendant in violation of Florida’s Electioneering Communication Statute 4 constituted

only one “allowable unit of prosecution” that the legislature intended to punish and that

double jeopardy barred multiple prosecutions for a single distribution of electioneering

communications. 980 So. 2d at 1147-48.

      We distinguish both McKnight and Guetzloe because in those cases, we were

addressing multiple violations of the same offense.      Here, Appellant’s two criminal

offenses are distinguishable discrete acts that are not the same offense, even though

both are charged under section 893.13(1)(a), because this statute proscribes alternative

or separate forms of criminal conduct. As previously discussed, the Florida Supreme

Court had no difficulty in applying the “separate offense” analysis under section

775.021(4)(a) in McCloud, holding that there was no double jeopardy violation for

convictions of the separate offenses of sale of cocaine and possession of the same

cocaine, or in Davis, concluding that there was no double jeopardy violation for the

delivery of cocaine and the possession of the same cocaine with the intent to sell or

deliver because they were separate offenses. See also State v. Oliver, 581 So. 2d 1304,

1305 (Fla. 1991) (approving separate convictions for possession with intent to sell

cocaine and sale of the same cocaine arising out of a single transaction). Moreover,

under Roughton, our double jeopardy analysis pursuant to section 775.021(4) must “be

conducted without regard to the accusatory pleading or the proof adduced at trial, even

where an alternative conduct statute is implicated.” 185 So. 3d at 1211. Simply put,

manufacturing of cannabis and possession of cannabis with intent to manufacture are




      4   § 106.1439, Fla. Stat. (2004).


                                            6
separate offenses under section 775.021(4)(a), even though they have now been codified

as crimes under the same subsection of section 893.13.

       Accordingly, we hold that Appellant’s dual convictions, even though arising out of

the same criminal transaction or episode and involving the same cannabis, do not violate

the prohibition against double jeopardy.     Additionally, none of the three exceptions

contained in section 775.021(4)(b) is applicable here because neither of Appellant’s

offenses is a lesser included offense of the other, they do not have identical elements of

proof, and they are not degrees of the same offense. 5


       AFFIRMED.


COHEN, C.J., and BERGER, J., concur.




       5  This exception under section 775.021(4)(b)2. prohibits a defendant from being
punished for violating two or more degrees of the same offense as provided by statute.
For example, the theft statute identifies three degrees of grand theft and two degrees of
petit theft. See § 812.014, Fla. Stat. (2005). The homicide statute identifies three degrees
of murder, see id. § 782.04, and the arson statute has two separate degrees. See id. §
806.01; see also Valdes, 3 So. 3d at 1076 (quoting State v. Paul, 934 So. 2d 1167, 1177-
78 (Fla. 2006) (Cantero, J., concurring)).


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