ALFRED WEST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for cocaine purchase within 1000 feet of a school was affirmed, but the trial court erred in sentencing on both purchase and possession counts where possession is a lesser-included offense, requiring reversal and dismissal of the possession count without affecting the overall sentence.
A trial court errs by sentencing on both a purchase conviction and a lesser-included possession conviction arising from the same cocaine, requiring dismissal of the possession count, though the sentence on the purchase count remains unchanged.
[1] Possession of cocaine is a lesser-included offense of purchasing cocaine at or near a school, and a trial court may not impose sentence on both offenses arising from the…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with and convicted of purchasing cocaine within 1000 feet of a school and possessing the same cocaine rock. The trial court with…
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HERSEY, Chief Judge.
In this appeal from a conviction for the purchase of cocaine within 1000 feet of a school, appellant initially raised four issues. We find that the first three are controlled by Burch v. State, 558 So. 2d 1 (Fla.1990). As to those issues, we affirm. Appellant was charged with and convicted of two related offenses: purchase and possession, involving the same cocaine rock. While the trial court withheld adjudication on the count for possession, it nevertheless sentenced appellant on both counts. This was error and we vacate the sentence on Count II. Finch v. Mayo, 137 Fla. 762, 189 So. 27 (1939); State ex rel. House v. Mayo, 122 Fla. 23, 164 So. 673 (1935). Further, because the offense of possession is a lesser-included offense of purchasing the same cocaine at or near a school, Carawan v. State, 515 So. 2d 161 (Fla.1987), we reverse with directions to dismiss Count II of the information.
Our decision will not affect appellant's sentence, however. Florida Rule of Criminal Procedure 3.988(g), shows that subtracting the eight points for the possession conviction will leave appellant within the same category he was in when the possession conviction was included. Therefore, appellee is correct that there will be no change in appellant’s sentence on Count I and resentencing on this issue will be unnecessary. Davis v. State, 562 So. 2d 443 (Fla. 2d DCA 1990); Lewis v. State, 545 So. 2d 427 (Fla. 2d DCA 1989), approved, 556 So. 2d 1103 (Fla.1990).
DOWNEY and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Horton v. State, 573 So. 2d 1004 (Fla. 4th DCA 1991)…ant’s conviction for purchasing cocaine near a school. See Burch v. State, 558 So. 2d 1 (Fla.1990). We reverse appellant’s conviction for possession of the same cocaine and remand for resen-tencing on the purchasing offense alone. See West v. State, 573 So. 2d 404, (Fla. 4th DCA, 1991). ANSTEAD, DELL and GUNTHER, JJ., concur.…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Burch v. State, 558 So. 2d 1 (Fla. 1990)
- Artis Rynard Lewis v. State, 545 So. 2d 427 (Fla. 2d DCA 1989)
- State v. Mayo, 122 Fla. 23 (Fla. 1935)
- Finch v. Hon. Nathan Mayo, 137 Fla. 762 (Fla. 1939)
- Landers v. State, 562 So. 2d 443 (Fla. 2d DCA 1990)
- State v. State Racing Comm'n, 122 Fla. 21 (Fla. 1935)
- Artis Rynard Lewis v. State, 556 So. 2d 1103 (Fla. 1990)