NATHANIEL MIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convicting a defendant for both possession with intent to sell and sale of the same cocaine violates double jeopardy principles.
Appellant was charged with possession with intent to sell and two counts of sale of cocaine arising from a single incident. He reserved his right to a…
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RYDER, Acting Chief Judge.
Appellant was charged with one count of possession of cocaine with intent to sell or deliver and two counts of sale or delivery of cocaine in violation of section 893.-13(l)(a)(l), Florida Statutes (1985). All counts arose out of an incident on February 11, 1986. Appellant filed a motion to dismiss the possession of cocaine with intent to sell or deliver charge on double jeopardy grounds. The trial court denied his motion. Appellant pled nolo contendere to all three counts, specifically reserving his right to appeal the denial of his motion to dismiss.
On appeal, appellant contends that the trial court erred in convicting appellant of both possession of cocaine with intent to sell and sale of cocaine. We agree. See Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988).
We reverse and remand with instructions to vacate either the conviction for possession of cocaine with intent to sell or deliver charge or one of the convictions for sale/delivery of the cocaine. The trial court is to recalculate appellant’s sentence on the remaining count.
DANAHY and THREADGILL, JJ., concur.