R.W., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated guilty of possession of cannabis with intent to sell within 200 feet of a public housing facility, but the Florida Supreme Court declared that statutory provision unconstitutional. The appellate court vacated the adjudication and remanded for entry of a guilty verdict on the lesser included offense of simple possession with intent to sell.
The court vacated the appellant's adjudication of guilt because the statute under which he was convicted was declared unconstitutional by the Florida Supreme Court. The court remanded with directions that the trial court enter a new adjudication of guilty for the lesser included offense of possession of cannabis with intent to sell under section 893.13(l)(b), as this offense is necessarily included in the original charge.
[1] A conviction under a statute declared unconstitutional must be vacated.
[2] Possession with intent to sell is a necessarily included lesser offense of possession with intent to sell within 200 feet of a public housing facility.
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Join FLexlaw to unlock all legal intelligence“The appellant is correct and we must vacate his adjudication.”
Establishes that the trial court's conviction must be vacated because the statute was declared unconstitutional
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Join FLexlaw to unlock all legal intelligenceOn March 5, 1992, the appellant was charged with violating section 893.13(l)(i), Florida Statutes, which prohibited possession of cannabis with intent…
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[*784] DANAHY, Judge.
The appellant was charged with violating section 893.13(l)(i), Fla.Stat. (1991), possession of cannabis with intent to sell, purchase, manufacture or deliver within 200 feet of a public housing facility. The incident took place on March 5, 1992. The appellant was adjudicated guilty and timely appeals, arguing that the case against him no longer is viable because the Florida Supreme Court has declared unconstitutional that part of the statute under which the appellant was adjudicated guilty. See Brown v. State, 629 So. 2d 841 (Fla.1994).
The appellant is correct and we must vacate his adjudication. However, we must also consider whether section 924.34, Florida Statutes (1991), requires that we direct the trial court to enter judgment for a lesser included offense. In that regard, we are persuaded by the reasoning of our sister court in Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994). Faced with exactly the same situation as we have in this case, the Fifth District concluded that possession with intent to sell under section 893.13(l)(a)l, Florida Statutes (1991) (now section 893.13(l)(b)), is a necessarily included lesser offense of possession with intent to sell within 200 feet of a public housing facility. See also Stamps v. State, 620 So. 2d 1033 (Fla. 2d DCA 1993) (purchase of cocaine is a necessarily included lesser offense of the offense of purchasing cocaine within 1,000 feet of a school).
Accordingly, we vacate the appellant’s adjudication and remand with directions that the appellant be adjudicated guilty of possession of cannabis with intent to sell, purchase, manufacture or deliver under section 893.13(l)(b), Florida Statutes (1991).
Reversed and remanded with directions to enter a new adjudication of guilty.
RYDER, A.C.J., and ALTENBERND, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shabazz Randazo Harris v. State, 655 So. 2d 1179 (Fla. 1st DCA 1995)…rove that appellant sold or delivered cocaine under section 893.13(l)(a)l. Thus, sale or delivery of cocaine is a necessarily included offense of section 893.13(1). See Paige v. State, 641 So. 2d 179, 181 (Fla. 5th DCA 1994). See also R.W. v. State, 646 So. 2d 783, 784 (Fla. 2d DCA 1994). Because section 893.13(1)® has been ruled void for vagueness, we reverse the judgment, and remand for resentencing in accordance with section 924.34, Florida Statutes, which provides: When the appellate court determines th…
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Williams v. State, 651 So. 2d 1291 (Fla. 2d DCA 1995)…A 1991). However, section 924.34 requires that we direct the trial court to enter judgment for the lesser included offense of possession of cannabis with intent to sell, purchase, manufacture or deliver under section 893.13(l)(b). See R.W. v. State, 646 So. 2d 783 (Fla. 2d DCA 1994). Reversed and remanded with directions. FULMER and WHATLEY, JJ., concur.…
Authorities Cited
- Brown v. State, 629 So. 2d 841 (Fla. 1994)
- Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994)
- Stamps v. State, 620 So. 2d 1033 (Fla. 2d DCA 1993)