PETER GARCIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for both sale and possession of the same cocaine violate the principles of Carawan v. State, especially when the offense occurred before the effective date of a statute that would have made them separate offenses.
Peter Garcia was convicted of sale and possession of cocaine, and possession of marijuana. The sale and possession counts for cocaine arose from the s…
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HALL, Judge.
Peter Garcia appeals from his judgment and sentence for sale and possession of cocaine and possession of marijuana.
The appellant was charged by information with one count of sale of cocaine, two counts of possession of cocaine and one count of possession of marijuana. Counts I and II, sale and possession of cocaine, arose from the sale of the same cocaine. The appellant argues that convictions for both sale and possession of cocaine for the same cocaine violate the principles of Carawan v. State, 515 So. 2d 161 (Fla.1987). We agree. See Emmons v. State, 546 So. 2d 69 (Fla. 2d DCA 1989); Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved, State v. Smith, 547 So. 2d 613 (Fla.1989).
In reversing the appellant’s sentence, we note that the appellant’s offense occurred on May 13, 1988, prior to the July 1, 1988, effective date of section 775.021(4), Florida Statutes (Supp.1988). That section makes sale and delivery of a controlled substance and possession with intent to sell that same substance separate offenses. Williams v. State, 547 So. 2d 710 (Fla. 2d DCA 1989).
Accordingly, the appellant's conviction for the lesser crime of possession of cocaine in Count II, must be vacated. State v. Barton, 523 So. 2d 152 (Fla.1988). We remand this case so that the trial court may amend the judgment and resentence the appellant under a revised sentencing guidelines scoresheet.
Affirmed in part; reversed in part; remanded with directions.
DANAHY, A.C.J., and PATTERSON, J., concur.
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Ford v. State, 556 So. 2d 483 (Fla. 2d DCA 1990)…f cocaine were based upon the same quantity of cocaine and, therefore, are in violation of Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved by State v. Smith, 547 So. 2d 613 (Fla.1989), superceded by statute as stated in Garcia v. State, 552 So. 2d 1177 (Fla. 2d DCA 1989). However, we are unable to consider this argument because appellant did not reserve the right to appeal this issue when he pleaded nolo contendere to both charges. Under section 924.06(3), Florida Statutes (1987), a defendant who…
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Owens v. Sec'y, Dep't of Corr. (Hernando County) (M.D. Fla. 2025)…ithout the HFO enhancements, he was subject to a statutory maximum sentence of 125 years' 5 Under Florida law, “sale . . . of a controlled substance and possession with intent to sell that same substance [are] separate offenses.” Garcia v. State, 552 So. 2d 1177, 1177 (Fla. 2d DCA 1989). HFO sentencing does not apply to "possession with intent to sell.” Grene v. State, 702 So. 2d 510, 510 (Fla. 3d DCA 1996). But the HFO statute does apply to the separate offense of sale of a controlled substance. See Moore…
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)
- State v. Barton, 523 So. 2d 152 (Fla. 1988)
- Williams v. State, 547 So. 2d 710 (Fla. 2d DCA 1989)
- Emmons v. State, 546 So. 2d 69 (Fla. 2d DCA 1989)