
    Alex BARTON, Petitioner, v. STATE of Florida, Respondent.
    No. 43702.
    Supreme Court of Florida.
    March 13, 1974.
    
      James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and David Luther Woodward, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 275 So.2d 300. Conflict has been alleged between the decision sought to be reviewed and Barnhill v. State, Benson v. State, and State ex rel. Lockmiller v. Mayo. The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Constitution of the State of Florida, F.S.A. The writ must be, and hereby is, discharged, for reasons which will be set out below.

The facts of the case are as follows:

Petitioner was charged, in two informa-tions, with the sale of marijuana on February 10, 1972, and February 26, 1972 to a person under the age of twenty-one years in violation of Section 404.02, F.S.A., Florida Statutes. Both informations alleged the same prior conviction of Petitioner on November 3, 1969, for possession of marijuana in violation of Section 398.03, Florida Statutes, F.S.A. Petitioner entered a plea of not guilty to both charges, and was tried by a jury. The State, at trial, introduced the record of Petitioner’s prior conviction, and Petitioner stipulated thereto.

At trial, the judge instructed the jury on information No. 1954 — B that:

. . you must further find that this defendant, Alex Barton, has previously been convicted of a violation of the drug laws of this state as alleged in this Information. That is, that he was convicted of the offense of possession of marijuana under section 398.03 of the Florida Statutes on the 3rd day of November, 1969, in this Criminal Court of Record in Hillsborough County, Florida.” (Emphasis supplied.)

Similar language was used in the instruction on information No. 1431-B.

The same jury returned the following verdict, which was essentially identical to the verdict on information No. 1431-B.

“We, the jury, find the defendant, Alex Barton, also known as Ellis, guilty as charged in the Information #1954. So say we all.” (Emphasis supplied.)

Based upon the jury verdicts, Petitioner was sentenced as a subsequent offender to thirty years on each offense, to run concurrently, with credit for jail time served, pursuant to Sections 404.15 and 775.-082(4) (a), Florida Statutes, F.S.A. Petitioner filed a motion for new trial, which was denied after hearing.

Petitioner then appealed to the District Court of Appeal, Second District, which affirmed the trial court, finding no reversible error, and finding the verdicts amply supported by the evidence. We agree with the District Court.

The sole issue to be decided herein is whether a jury verdict which fails to separately find and state that the defendant was formerly convicted as charged is sufficient for judgment and sentence as a subsequent offender of the Florida Drug Abuse Law. Under the facts of this case, we find that it is.

Section 404.15, Florida Statutes, F.S.A., the Florida Drug Abuse Law, provides, in part:

“(3) If the offense consisted of the delivery of any drug controlled by this chapter to a person who had not attained the age of twenty-one years at the time of such offense, the offender, upon conviction, shall be punished as follows:
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“(b) If the offender has been previously convicted of any offense under chapter 398 or chapter 404 at the time of the commission of the offense of delivery under this section, he shall be guilty of a felony of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084; and the imposition of the sentence shall not be suspended or deferred, nor shall the person so convicted be placed on probation.”

The penalty upon conviction for a felony of the first degree is provided for in Section 775.082, Florida Statutes, F.S.A., as follows:

“(4) (a) For a felony of the first degree, by a term of imprisonment in the state penitentiary not exceeding 30 years or, when specifically provided by statute, by imprisonment in the state penitentiary for a term of years not exceeding life imprisonment.”

Petitioner has pointed out that the law in Florida is well settled, with respect to conviction and sentence as a subsequent offender of the intoxicating liquor laws, and in such cases, the jury must make separate findings and state in the verdict whether the defendant had been formerly convicted of a violation of the liquor laws as charged in the information or indictment. We, of course, find no distinction between the due process requirements due those persons charged and convicted of subsequent violations of the liquor laws and those charged and convicted of subsequent- violations of the drug laws, pursuant to the foregoing statutes. Both situations may result in a greater and more severe punishment for the subsequent conviction and thus the constitutional safeguards must be the same.

The instant case, however, is distinguishable from those cited for conflict, because, as previously noted, Petitioner stipulated, at trial, to his prior conviction. And, after this stipulation, there was simply no issue on this point to be resolved by the jury. Therefore, the jury’s finding of guilty “as charged” was sufficient, in light of the fact that Petitioner was charged in the in-formations as a second offender, and had stipvilated to his prior conviction in open coiirt.

Accordingly, no direct conflict having been demonstrated, the writ must be, and hereby is, discharged.

It is so ordered.

ADKINS, C. J., and ROBERTS, DEK-LE and CARLTON (Retired), JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Justice

(dissenting) :

I find no legal basis for distinguishing the cases cited for conflict from the instant decision in the District Court.

The stipulation by the Petitioner, Alex Barton, agreeing that he had been previously convicted of possession of marijuana as charged in Information # 1954, should not be equated with a jury’s specific finding to the same effect.

In line with the cases cited for conflict, the jury was instructed by the trial judge on Information # 1954 that it

“must find that this defendant, Alex Barton, has previously been convicted of a violation of the drug laws of this state as alleged in this information. That is, that he was convicted of the offense of possession of marijuana under Section 308.03 [398.03] of the Florida Statutes, on the 3rd day of November 1969 in this Criminal Court of Record in Hills-borough County, Florida.” (Emphasis supplied.)

The jury merely found the defendant “guilty as charged in the Information # 1954.”

Based upon this verdict Barton was sentenced as a subsequent offender to thirty years imprisonment.

In State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228 (1924), this Court interpreted the subsequent offender laws to apply to any crime, and also held that the jury should be instructed to “separately find and state their findings in the verdict whether the defendant had been formerly convicted as charged in the indictment.” (Emphasis supplied.)

In Benson v. State, 88 Fla. 103, 101 So. 231 (1924), a reversal resulted because there the jury verdict was:

“We, the jury, find the defendant guilty of the first count; so say we all.”

Therein we said:

“When a person is indicted and tried for a violation of the intoxicating liquor law as a second offender, it is the safer practice, if not indeed essential, that the jury should expressly find the historical fact of a former conviction as alleged. (Emphasis supplied.)
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“Whether a verdict of guilty is responsive to the allegations of the indictment as to the prior conviction is doubtful.” Supra at 231.

If any doubt remained regarding the rule expressed in Lockmiller and Benson, it was resolved by our holding in Barnhill v. State, Fla.1949, 41 So.2d 329, wherein Barnhill was convicted and sentenced as a subsequent offender of the liquor laws. The language in the jury verdict was almost identical to that in the instant case. In restating the rule, and in remanding for a new trial, we emphasized that the above-quoted language in Lockmiller “may have been dictum but [has since] become the controlling rule.” Supra 41 So.2d at 331. The courts have since consistently followed this rule. See Langford v. State, 111 Fla. 506, 149 So. 570 (1933); Coulson v. State, 110 Fla. 279, 149 So. 521 (1933); Clark v. State, 239 So.2d 500 (Fla.App.2d 1970), and Polston v. State, 137 So.2d 602 (Fla.App.2d 1962).

According to the rationale of the cited cases, it is not sufficient to find a defendant guilty of a previous offense by mere reference to language in an information.

The jury in the instant case did not follow the trial judge’s instruction that it separately find and deliberately state in its verdict that the defendant Barton had been previously convicted of possession of marijuana as charged in Information # 1954. For aught that appears in the record, except by doubtful inference, the jury may have concluded that it would exercise by way of leniency its unfettered discretion not to expressly state in its verdict that the petitioner was guilty as a former offender despite his stipulation. It is well known that juries sometimes refuse to follow a trial judge’s instructions and the state’s evidence, even though the guilt of the defendant appears at trial to be beyond peradventure of a doubt. The courts are not at liberty to judicially find and extrapolate as if they were jurors what a jury factually did not find. Thirty years is a very long sentence in a case of this kind. A deliberate, unmistakable verdict in complete accord with controlling law should have been entered by the jury as necessary predicate to so long a sentence. The Petitioner is entitled to the benefit of the doubt, similarly to that accorded Benson and other defendants in the cited cases when the jury did not expressly state he was a previous offender in its verdict. 
      
      . 41 So.2d 329 (Fla.1949).
     
      
      . 88 Fla. 103, 101 So. 231 (1924).
     
      
      . 88 Fla. 96, 101 So. 228 (1924).
     
      
      . “E. J. SALCINES, County Solicitor of the Thirteenth Judicial Circuit in and for the County of Hillsborough, CHARGES that ALEX BARTON, a/k/a ‘ELLIS’ on the 10th day of February, 1972, in the County of Hillsborough and State of Florida, did unlawfully and feloniously sell to one DANIEL OATES, who had not attained the age of twenty-one (21) years at the time of such offense Cannabis, commonly known as Marijuana, a further description of which is to the County Solicitor unknown,
      “The said ALEX BARTON, a/k/a ‘ELLIS’, previously having been convicted of the offense of Possession of Marijuana, pursuant to Florida Statute 398.03 on the 3rd day of November, 1969, in the Criminal Court of Record of the County of Hillsborough and State of Florida.” Amended Direct Information, Case No. 1954-B.
     
      
      .“E. J. SALOINES, County Solicitor of the Thirteenth Judicial Circuit in and for the County of Hillsborough, CHARGES that ALEX BARTON, a/k/a ‘ELLIS’, on the 26th day of February, 1972, in the County of Hillsborough and State of Florida, did unlawfully and feloniously sell to one DANIEL OATES, who had not attained the age of twenty-one (21) years at the time of such offense, Cannabis, commonly known Mari-' juana, a further description of which is to the County Solicitor unknown,
      “The said ALEX BARTON, a/k/a ‘ELLIS’, previously having been convicted of the offense of Possession of Marijuana, pursuant to Florida Statute 398.03 on the 3rd day of November, 1969, in the Criminal Court of Record of the County of Hillsborough and State of Florida.” Second Amended Direct Information, Case No. 1431-B.
     
      
      . See notes 4 and 5, supra.
      
     