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Prosecutor in Florida Permitted to Charge Defendant With Two Separate Felony Charges for Selling One Drug Quantity to One Person

In Florida, it is pretty clear that the sale of an illegal drug is a felony crime. Selling some drugs is more serious than others. While police and prosecutors continue to waste time and taxpayer money arresting and charging people with selling marijuana, at least that crime is not considered very serious, depending on the quantity. However, selling heroin or fentanyl is considered a serious crime which often carries serious jail or prison time. The more that is sold, the more serious the crime, generally.

Normally, if a person sells one drug amount to a person one time, that is a single crime that carries a single sentence. Multiple sales, even to the same person, can each be considered separate crimes if they are separated by a sufficient time period.  Can a single sale of one substance to a single person be considered two crimes?

In a recent case south of Jacksonville, Florida, the defendant sold a single drug quantity he believed to be heroin to an undercover police officer. He was arrested on one count of sale of heroin, which is a second degree felony that carries a maximum sentence of 15 yeas in prison. In drug cases where a defendant requests a lab report or where the case may go to trial, the state will send the drug sample to the crime lab to be tested for composition and weight. In this case, the lab report showed that the substance contained heroin and fentanyl. As a result, the state charged the defendant with two separate counts- sale of heroin and sale of fentanyl although the defendant just sold one substance one time. Both charges are second degree felonies and fall under the same Florida statute.

The criminal defense lawyer filed a motion to dismiss one of the charges claiming the two charges were a violation of double jeopardy. Double jeopardy prevents multiple punishments for a single criminal act. However, in determining whether double jeopardy is implicated, one analysis looks at the intent of the legislature when enacting the criminal statutes. In Florida, the court must look at whether the two offenses require proof of separate elements. In other words, does one charge require proof of a fact the other charges does not? In this case, there was only one act and one statute so that test did not apply. Another analysis looks at whether the legislature intended to punish different violations of the same statute. The court looked at the Florida drug statute which punishes the sale of “a controlled substance” and ruled that the Florida legislature intended to punish a defendant for the sale of each controlled substance. The sale of each controlled substance is a separate violation of the Florida drug statute even if the sale is of just one actual substance. Therefore, the state was permitted in charging the defendant with separate felonies for the sale of one quantity one time to one person. Based on this case, a person could be charged with more than two felonies for a single sale if the substance contained more than two illegal substances.