Police about to execute search warrant at apartment, observe defendant leaving through window. Defendant located outside apartment, arrested for evading, it is unclear whether the small quantity of marijuana was found on him when arrested or when brought back to apartment. Search of apartment reveals felony amount (well over 30 lbs)of marijuana. Defendant pleads to misdemeanor amount before felony is even sent to DA for consideration. It was almost 8 mos after plea to misd police sent felony case to DA. Is it double jeopardy? Defendant was not listed on search warrant and it was not until they found fingerprints on one of the bags that defendant was linked to marijuana in the apartment.

[This message was edited by pkdyer on 06-23-06 at .]

[This message was edited by pkdyer on 06-23-06 at .]

You should not have a problem as long as you can clearly distinguish the two collections.

However, there is a case adverse to you out of the 3rd Court from 2000 or 2001 I think. It originally came out of the 299th Dist. Ct. and involved crack in two places, floorboard and pocket. The State tried to explain that since both amounts were less than a gram - and totalled less than a gram - they should be considered together. The judge ruled that they should be considered separately and severed one out of the jury charge. 3rd Court agreed with the prosecutor, but too late to do the State any good.

Sorry, cannot remember the name.

Obviously you will not be prosecuting for the same substance as gave rise to the first conviction. There is no identity between the offenses, even if they occurred at basically the same time and place. You are not asking to punish more than once for each quantity. Smith, 873 S.W.2d at 775. Presumably the affirmative links would be different.

The problem with applying Smith is that each offense required a separate element to prove delivery with one amount of drugs and poss with intent to deliever with the other amount of drugs. Here all we have is possession of two different amounts - there is no poss with intent to deliver marijuana - so all we can charge is poss of the amt found on him (Class B - the one he already pleaded guilty to)and poss of the larger amount. What is the separate element. All of the cases where separate quantities are prosecuted it is usually under separate offenses.