D.G.R., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in amending the petition to charge possession of marijuana after the state rested, as possession is not a lesser included offense of sale.
D.G.R. was originally charged with selling, delivering, or manufacturing marijuana. The trial court amended the petition to charge possession of marij…
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PER CURIAM.
D.G.R. appeals his conviction of possession of marijuana arguing that the trial court erred in amending the petition to charge possession of marijuana although it originally charged that D.G.R. did “sell, deliver, or manufacture” marijuana. We agree.
Possession of marijuana is not a lesser included offense of sale of marijuana, just as possession of the hallucinogenic drug, LSD, is not a lesser included offense of sale of LSD. McPhee v. State, 254 So. 2d 406, 408 (Fla. 1st DCA 1971). Further, “sale” is nothing more than “delivery” with consideration. See Milazzo v. State, 359 So. 2d 923, 924 (Fla. 3d DCA 1978). Accordingly, since the petition does not contain any allegations charging D.G.R. directly or by implication with the offense of possession, the petition fails to support the conviction under the theory it is a category for lesser included offense under Brown v. State, 206 So. 2d 377 (Fla.1968). McPhee v. State, supra. The amendment to the petition, charging a wholly different crime, made after the state rested and being objected to by defense counsel, requires that appellant’s conviction for possession of marijuana be REVERSED.
McCORD, Acting C. J., SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.
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Citator
Cited By
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Bosier v. State, 419 So. 2d 1042 (Fla. 1982)…receive a jury instruction on attempted sale, his conviction must be reversed. Appellant relies on several cases, including Milazzo v. State, 377 So. 2d 1161 (Fla. [*1043] 1979), State v. Stewart, 374 So. 2d 1381 (Fla.1979), and D. G. R. v. State, 376 So. 2d 460 (Fla. 1st DCA 1979), to support the proposition that to charge a defendant with “delivery for consideration” is to charge him with sale. A close analysis of these cases shows that they do not support appellant’s argument. In Stewart, the defendant q…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Milazzo v. State, 359 So. 2d 923 (Fla. 3d DCA 1978)