BERNARDIN INGLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that dual convictions for possession and sale of the same cocaine, committed before the statutory amendment's effective date, are illegal and require vacation of one conviction.
Inglis was convicted of both possession with intent to sell and sale of the same cocaine, offenses committed before July 1, 1988. He completed serving…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHARP, Judge.
Inglis appeals from an order denying his post-conviction motion to vacate his judgment and sentence for the sale of cocaine after he had completed serving his sentence for possession of cocaine with intent to sell.1 The trial court had sentenced In-glis to eighteen months in prison for the possession count, and three years of probation on the sale count, to run consecutive to the prison sentence. Both counts involved the identical quantum of cocaine. On the authority of State v. Smith, 547 So. 2d 613 (Fla.1989), we reverse.
In Smith, the Florida Supreme Court held that (1) Carawan v. State, 515 So. 2d 161 (Fla.1987) has been overridden by the 1988 amendment to section 775.021(4),2 but that (2) the override will not be retroactively applied to offenses committed before the effective date of the amendment (July 1, 1988). In addition, the court approved the decision of the Second District in Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), which reversed Gordon’s convictions for both the sale and possession of the same “rock” of cocaine. The court relied on Carawan in holding that the dual convictions based on the same underlying act constituted error. This case also involves the same cocaine for both offenses. They were committed on March 24, 1987, before the effective date of the amendment. In addition, at the time of sentencing (January 8, 1988), Cara-wan had been decided. Thus, authority existed for the trial court to vacate one of the two convictions. Because the dual sentences as imposed were illegal pursuant to Carawan, this motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 was proper. Therefore we reverse the order denying Inglis’ motion and remand with instructions to vacate the judgment and sentence for the sale of cocaine.
REVERSED and REMANDED.
ORFINGER and COWART, JJ., concur. . Both offenses constitute a violation of section 893.13(l)(a)l. Fla.Stat. (1987).
. Ch. 88-131, § 7, Laws of Fla.
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Dubose v. State, 566 So. 2d 592 (Fla. 2d DCA 1990)…le of Criminal Procedure 3.701(d)(4), the offenses for possession with intent to deliver should not have been included on the seoresheet. Carawan had been decided by the time of sentencing and the trial court should have applied it. Inglis v. State, 547 So. 2d 702 (Fla. 5th DCA 1989). Appellant did not object to the seoresheet at sentencing. However, this issue has been held to be fundamental, and therefore, we may consider it. Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1989). We find the trial court err…
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Young v. State, 566 So. 2d 911 (Fla. 2d DCA 1990)…sell). Thus, pursuant to Florida Rule of Criminal Procedure 3.701(d)(4), these offenses should not have been included on the scoresheet. Carawan had been decided by the time of sentencing and the trial court should have applied it. Inglis v. State, 547 So. 2d 702 (Fla. 5th DCA 1989). We find the trial court erred in scoring points for the two possession counts. We remand so that appellant may be resen-tenced with a properly prepared scoresheet. We affirm in all other respects. SCHOONOVER, C.J., and DANAHY…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)