ALEXANDER L. HENRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's jury instruction on a lesser included offense, to which defense counsel agreed, did not constitute fundamental error, even though possession of cocaine is not a lesser included offense of sale of cocaine.
Appellant was convicted of possession of cocaine. The defense argued the jury was erroneously instructed that simple possession was a lesser included …
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ERVIN, Judge.
Appellant, Alexander L. Henry, raises three issues in connection with his appeal from his conviction for possession of cocaine. Regarding the first two issues, we find no error in the admission into evidence of either the photograph or the cocaine. As to the third point, the defense contended that the lower court erroneously instructed the jury that simple possession of cocaine is a lesser included offense to sale of cocaine, and that the jury returned an inconsistent verdict finding appellant guilty of possession in that the evidence presented only proved possession if sale was also established. The state concedes error on this issue, pointing out that possession of a controlled substance is not a lesser included offense of sale of a controlled substance,1 and that fundamental error allegedly occurred because appellant was convicted of a crime for which he was not charged.
The state’s concession is, under the circumstances, erroneous. Although the record discloses that defense counsel initially made a somewhat tentative objection to the court’s proposed instruction on possession, he nevertheless later advised the court that his client preferred that the charge be given. He therefore had no objection to the charge or to the verdict form which included an option that the appellant could be found guilty of possession of cocaine. In the absence of objection, the court’s instruction to the jury on an erroneous lesser offense cannot be considered fundamental error. See Hoover v. State, 530 So. 2d 308 (Fla.1988); Ray v. State, 403 So. 2d 956 (Fla.1981; Roberts v. State, 461 So. 2d 212 (Fla. 1st DCA 1984); McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971).
AFFIRMED.
WENTWORTH and MINER, JJ., concur. . Smith v. State, 430 So. 2d 448, 449 (Fla.1983). One can, however, be convicted of both sale and possession if the two violations occur during a single episode. Id.
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Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002)…court, Dinardo v. State, 742 So. 2d 287 n. 1 (Fla. 1st DCA 1998), and it is the practice of Florida appellate courts not to accept erroneous concessions by the state. See Reed v. State, 783 So. 2d 1192, 1196 n. 2 (Fla. 1st DCA 2001); Henry v. State, 564 So. 2d 212, 213 (Fla. 1st DCA 1990); Santiago v. State, 669 So. 2d 334, 335 (Fla. 3d DCA 1996); Prieto v. State, 627 So. 2d 20, 21 (Fla. 2d DCA 1993), rev. denied, 634. So. 2d 626 (Fla.1994). We cannot agree that a reversal for resentenc-ing is required under…
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Armstrong v. State, 566 So. 2d 943 (Fla. 5th DCA 1990)…, PETERSON and GRIFFIN, JJ., and C.W. DANIEL, Judge, Retired, concur. COBB, J., concurs specially with opinion, with which DAUKSCH, J., concurs. . Armstrong was on probation for attempted aggravated assault and battery. . Compare, Henry v. State, 564 So. 2d 212 (Fla. 1st DCA 1990). . Compare Brady v. State, 518 So. 2d 1305, 1308 (Fla. 3d DCA 1987), rev. denied, 523 So. 2d 576 (Fla.1988); Register v. State, 514 So. 2d 1122, 1124 (Fla. 1st DCA 1987); Robinson v. State, 442 So. 2d 284 (Fla. 2d DCA 1983). .…
Authorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Smith v. State, 430 So. 2d 448 (Fla. 1983)
- Hoover v. State, 530 So. 2d 308 (Fla. 1988)
- Roberts v. State, 461 So. 2d 212 (Fla. 1st DCA 1984)