ROY W. COLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that possession of cocaine is a lesser included offense of purchasing cocaine within 1000 feet of a school, and thus, convictions for both cannot stand.
Appellant was convicted of purchasing and possessing cocaine within 1000 feet of a school. He appealed the judgment of conviction.…
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PER CURIAM.
Appellant timely seeks review of his judgment of conviction for both purchase and possession of cocaine within 1000 feet of a school in violation of the “schoolyard” statute, section 893.13, Florida Statutes. We affirm in part and reverse and remand in part.
We find no merit in appellant’s initial two-point constitutional challenge as the constitutionality of the “schoolyard” statute was upheld in Burch v. State, 558 So. 2d 1 (Fla.1990). Nor do we find merit in appellant’s contention of error in denial of his requested jury instruction.
We do however, find reversible error in the trial court’s having entered judgment and sentence for both purchasing cocaine and possessing the same cocaine at or near a school. Possession of cocaine is considered a lesser included offense of the offense of purchasing the same cocaine within 1000 feet of a school. State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989). Both counts cannot stand and on remand, the conviction for possession should be vacated.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
LETTS, POLEN and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jackson v. State, 581 So. 2d 237 (Fla. 4th DCA 1991)…ing judgment and sentence for both purchasing cocaine near a school and possession of cocaine. Possession of cocaine is considered a lesser included offense of the offense of purchasing the same cocaine within 1,000 feet of a school. Coley v. State, 571 So. 2d 55 (Fla. 4th DCA 1990); State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989). The 1989 amendment to section 775.021(4)(a), Florida Statutes (1989) is inapplicable in this case because the offense was committed before the amendment. Carawan v. State, 515…
Authorities Cited
- Burch v. State, 558 So. 2d 1 (Fla. 1990)
- State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989)
- Cornerstone Cmtys., Inc. v. City OF Clearwater, 545 So. 2d 903 (Fla. 2d DCA 1989)