HAROLD FLETCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harold Fletcher appeals his conviction for unlawful sale or delivery of cannabis and the costs imposed on him. The court reversed, finding error in the trial court's refusal to instruct the jury on the lesser included offense of delivery without consideration and in the improper imposition of court costs.
The court held that when delivery with consideration is charged, the jury must be instructed on the lesser included offense of delivery without consideration when requested by the defendant. The court also held that the imposition of court costs was improper because Fletcher was not given prior notice or opportunity to object, and because the statute imposing those costs could not apply retroactively to crimes committed before July 1, 1985.
[1] When a charge includes "sale or delivery for consideration," a jury must be instructed on the lesser included offense of delivery without consideration if the defendant o…
[2] Delivery without consideration is a lesser included offense of delivery with consideration.
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Join FLexlaw to unlock all legal intelligence“In Bosier v. State, 419 So.2d 1042 (Fla.1982), the Florida Supreme Court determined that sale was not equal to delivery for consideration. Although delivery without consideration is not a lesser included offense under sale, it is under delivery with consideration.”
Establishes the legal relationship between sale and delivery charges and supports the requirement for a jury instruction on the lesser included offense.
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Join FLexlaw to unlock all legal intelligenceFletcher was charged by information with "sale or delivery for consideration" of cannabis under Florida law. He objected to the joinder of sale and de…
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DAUKSCH, Judge.
Appellant appeals his conviction for “unlawful sale or delivery for consideration” of cannabis in violation of Section 893.13(1), Florida Statutes (1983) and the costs imposed pursuant to Section 27.3455(1), Florida Statutes (1985) and Section 960.20, Florida Statutes (1985).
Appellant was charged by information which read “sale or delivery for consideration”. Appellant filed a motion to elect to require the prosecution to elect between sale or delivery which was denied by the trial court. Appellant also requested the jury be instructed on the lesser included charge of delivery without consideration pursuant to Section 893.13(l)(f), Florida Statutes (1983) which was denied. We find error and reverse.
In Bosier v. State, 419 So. 2d 1042 (Fla.1982), the Florida Supreme Court determined that sale was not equal to delivery for consideration. Although delivery without consideration is not a lesser included offense under sale, it is under delivery with consideration. Since appellant objected to the joinder and requested the instruction, he is entitled to it. When delivery is charged, the jury must be instructed on the lesser included offense of delivery without consideration. See, Green v. State, 459 So. 2d 351 (Fla. 2d DCA 1984).
The trial court also improperly assessed court costs. The state must provide adequate notice of assessment to a defendant with full opportunity to object to the costs and any enforcement may occur only after a judicial finding that an indigent defendant has the ability to pay. Jenkins v. State, 444 So. 2d 947, 950 (Fla.1984). Appellant was not given prior notice that the assessment would take place at the sentencing hearing. Therefore these costs were improperly imposed. Furthermore, this court has recently held that Section 27.3455(1), Florida Statutes (1985) may not be imposed against a defendant whose crime was committed prior to July 1, 1985. Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986). The offense appellant was convicted of occurred on September 17, 1984. Therefore the imposition of these court costs was improper. REVERSED and REMANDED.
UPCHURCH, C.J., and SHARP, J., concur.
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Outar v. State, 508 So. 2d 1311 (Fla. 5th DCA 1987)…. 5th DCA 1986), re [*1312] view denied, 506 So. 2d 1041 (Fla.1987); Gordon v. State, 497 So. 2d 661 (Fla. 5th DCA 1986); Maxwell v. State, 492 So. 2d 841 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 784 (Fla. 5th DCA 1986); Fletcher v. State, 491 So. 2d 354 (Fla. 5th DCA), review denied, 500 So. 2d 545 (Fla.1986); Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986). . § 27.3455, Fla.Stat. (1985); Harris v. State, 507 So. 2d 1133 (Fla. 5th DCA 1987); Hardy v. State, 503 So. 2d 453 (Fla. 5th DCA 1986);…
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Thomas v. State, 512 So. 2d 1099 (Fla. 5th DCA 1987)…ed, 506 So. 2d 1041 (Fla.1987); Gordon v. State, 497 So. 2d 661 (Fla. 5th DCA 1986), affirmed, 509 So. 2d 924 (Fla.1987); Maxwell v. State, 492 So. 2d 841 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 784 (Fla. 5th DCA 1986); Fletcher v. State, 491 So. 2d 354 (Fla. 5th DCA), review denied, 500 So. 2d 545 (Fla.1986); Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986). . See Jenkins v. State, 444 So. 2d 947 (Fla.1984); Delifus v. State, 507 So. 2d 753 (Fla. 5th DCA 1987); Butler v. State, 498 So. 2d 611…1 / 2
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Stanley v. State, 507 So. 2d 1131 (Fla. 5th DCA 1987)…inion. . Stanley was charged by information on November 21, 1984. . Gordon v. State, 497 So. 2d 661 (Fla. 5th DCA 1986); Bennett v. State, 495 So. 2d 239 (Fla. 5th DCA 1986); Miller v. State, 492 So. 2d 1191 (Fla. 5th DCA 1986); Fletcher v. State, 491 So. 2d 354 (Fla. 5th DCA), review denied, 500 So. 2d 545 (Fla.1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986).…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986)
- Bosier v. State, 419 So. 2d 1042 (Fla. 1982)
- Green v. State, 459 So. 2d 351 (Fla. 2d DCA 1984)