KEVIN JOSEPH MCKINNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for both sale and possession of a single piece of cocaine cannot stand when the offenses occurred before the legislative amendment to section 775.021(4).
McKinney was convicted of sale and possession of cocaine based on a single transaction involving one piece of crack cocaine sold to an undercover agen…
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SHARP, Judge.
McKinney appeals his convictions for sale of cocaine under section 893.13(l)(a), Florida Statutes (1987), possession of cocaine under section 893.13(l)(f), Florida Statutes (1987), and the sentence which was imposed on the possession count. Adjudication was withheld on the sale count. He argues both convictions cannot stand because they are based on the sale of one piece of crack cocaine to an undercover police agent. We agree.
The crimes in this case took place on April 8, 1988. They predate the legisla ture’s amendment to section 775.021(4). Therefore, the law of this case is governed by Carawan v. State, 515 So. 2d 161 (Fla.1987). Since both convictions cannot rest on the single transaction involving one rock of cocaine, we must vacate the conviction for the lesser degree crime, the possession count.1 Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved, 547 So. 2d 613 (Fla.1989); Jelks v. State, 546 So. 2d 783 (Fla. 5th DCA 1989). Accordingly, McKinney’s conviction and sentence for the possession count is vacated and this cause is remanded for sentencing on the sale count.
REVERSED in part; REMANDED.
DAUKSCH and COWART, JJ., concur. . Possession is a third degree felony; sale is a second degree felony. § 893.13(l)(f), (l)(a), Fla.Stat. (1987).
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Roberts v. State, 557 So. 2d 685 (Fla. 5th DCA 1990)…ns because the convictions were predicated upon a single criminal act, the sale of one rock of cocaine to an undercover police officer. The state properly concedes error. See Carawan v. State, 515 So. 2d 161 (Fla.1987).1 See also McKinney v. State, 553 So. 2d 796 (Fla. 5th DCA 1989); Hamilton v. State, 552 So. 2d 1186 (Fla. 5th DCA 1989). Accordingly, we vacate the judgment and sentence imposed on the possession charge and remand this cause to the trial court for resentencing. AFFIRMED in part; REVERSED in…
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Hoyle v. State, 554 So. 2d 672 (Fla. 5th DCA 1990)…dgment against appellant for the possession charge was mistakenly and unintentionally entered we reverse that judgment. The sentence is not affected so the conviction for delivery of cocaine and the sentence are affirmed. See also McKinney v. State, 553 So. 2d 796 (Fla. 5th DCA 1989). AFFIRMED in part; REVERSED in part. GOSHORN and HARRIS, JJ., concur.…
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)
- Jelks v. State, 546 So. 2d 783 (Fla. 5th DCA 1989)