charge or try to stay conduct was such that the trial court on the sidebar told defense counsel that it could declare the state's actions as court b s unfair or so far say the sneaky prosecution in declining to grant in this trial indicated that it was not doing so because there was no discovery violation in the fourth quarter so extent that the sports analogy frames the issue in sports we we accept we sometimes applaud teams out in the ball fake punt for instance or it catchers thrown the sign to a pitcher outside batters but in the walk we take a different approach we say that there can't be any unfair surprises prosecution has to tell the defense what it is doing what it seeks to charge the defendant with how it's used to be going through its prosecution as united states supreme court stated in jacksonville virginia the various statutes that our legislators put in place to protect that constitutional protection we can see that there was several steps along the way which the state though is so close that it intended to charge mr lowery for that third session to attempted to do this the way they did and if this court finds that there wasn't insufficient evidence to sustain either conviction then yes on remand the should be a double jeopardy issue because the state brought either the january tenth with that earlier date and same with count three so the state called the shot here and if this court finds that there was not in since there wasn't sufficient evidence to sustain either and yes there should be a double jeopardy on them that's their decision that they mr lowry on that either the state decided to proceed in the way it did it finally did his due process rights but at the same time attempted to say that it had enough to sustain a conviction so if it didn't this court finds that it didn't you know that's that's see your position is that although the state position starting with closing argument that yes we have charged him with the earlier incident your position is they did not do that appropriately didn't take the preliminary hearing the only evidence that was presented at the preliminary hearing involve the january tenth two thousand and fourteen stop there is absolutely no evidence presented on the earlier of legit stop and yet the state t ok well again what what case or stay actually are you citing to support a theory that it was incumbent on the state that defense council and nothing was not able to do anything except for asking mr there's also issues about joined or if this was properly joined or not section one within four says that offenses cannot be joined in the same so charging instrument unless there is a comprehensive transaction has absolutely no allegations of this there was nothing put in those charges to say that this is account rance a transaction the state said that these are two separate incidents not one overarching incident which the inability to separate incidents which they did it separately from the very inception of the case defense counsel and defendant has the opportunity to make sure that charges probable cause before people send it to the court or to a jury they have the ability to challenge the propriety of the causes if it's  improperly joined or not which needs propose it is then in a strategy a trial may have been different it's really difficult for me to go now with this court to go now and try to post through the entire trial and see where defense counsel may have done things differently because the state didn't bring the charges properly i think it's incumbent upon the state to make sure everything is done right the first time around to give defendant an opportunity to have you know fight it head on this was an incumbent on you to scale of some sort of the circumstantial evidence fact that that's what the state was bringing along all the time he said this earlier possession surlier x was circumstantial evidence of knowledge as to the january tenth stop beyond the ability to have a preliminary hearing on it to determine whether or not it's been properly joined all of that passed by that it went to the jury and said out guess what he said or the officer said i discussed it got that's enough to convict there's they say by doing this when we are going around the net around many different protections that were in place not to mention constitutional protections here used prior offenses which are elements of the offense to boot sentenced to fifteen years we think that is an error and the state is suggest that we take this in isolation by just that stand alone but i think if you look at the record as a whole the court was focused primarily on his previous convictions which again were part of the underlying offense so therefore they are ineligible for booting up on the state i list that action in each camp the theory of the state's case was that the defendant head actual possession of the gun on january the on about january  doing a traffic stop constructive possession a few days prior to the defendant had a method that he also helped by some of the state's theory was that the defendant had advise the defendant the jury to not follow the jury instruction of  state mentioned the traffic stop the state also mentioned that the defendant had previously hail he gone a few days prior and had a minute to do in that side denied that he had actually made the statement that when he made it he was confused five officers had ended up asking him questions so is four and the defendant day and so that the state make it clear that it was requesting that instruction because it was seeking to have the defendant held accountable for the conduct of her two days prior to the tampa and or of the january white well at the time of the instruction kaufman's from the court is asked to give three point zero one was there any evidence that that point or any suggestion made by the state that it was appropriate because there was some ambiguity as to the date of the of the offense because just based on what i've seen and in the record january temp was the only day that was  a different date that would have supported the court's giving three point zero one as far as the traffic stop on january tenth that was a day and day but also trial evidence was presented recommended a sentence of twenty to twenty five years the defense counsel recommended a sentence of six years the state imposed a sentence of fifteen years which was weak and the did make a statement i do merely occur and jest appropriate sentence based on just his criminal history and his criminal record alone is fifteen years but that was an isolated statement in there and the court and defense counsel was responding to the fact that the defendant had maintained that he basically had a non viole the judgment of the child count so what about the preliminary hearing issue as far as opposing counsel is representation that no evidence was operating when we read hearing motion that they've had intended all along to charge the family with two separate charges and to separate cases of two separate acts and that it's it's office knew about it well there are two important people the other about if you think about it relates to a single event black's law dictionary defines it as relating to a single pivotal event for the state to attempt to say that on or about means that it can in compas separate acts which you can charge for separate offenses convict on separate offenses is an exercise in contortion out or about referred to that single day again there is no question as to that date and as i think the course pointed out that the use of that to try to get  a there was a preliminary hearing held which locks them in to the charges they can't go outside that there was again discovery evidence provided to counsel so the state's attempt to try to say well because  state attempted to try to bring this up but preliminary hearing the issue may have been dissolved at that point the court might have said ok you don't have probable cause for that second that second charge and were gone away we would not be here today furthermore instruction in the state treasurers you know clear that away but i think taken in context the prosecutor statements there were really disregard knowledge and knowledge was at the crux of this case it was constructive possession it was whether or not he had