MORRIS TERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WOLF, C.J.
Appellant challenges his conviction and sentence for trafficking in cocaine by having in his possession cocaine weighing 28 grams or more, but less than 200 grams, in violation of section 893.135, Florida Statutes. We determine that the state failed to prove the substance contained more than 28 grams of cocaine as alleged in the information. Hayes v. State, 750 So. 2d 1 (Fla.1999); Ankiel v. State, 479 So. 2d 263 (Fla. 5th DCA 1985).
Although the state urges us to apply section 893.135(6), Florida Statutes (2001), which defines the weight of a controlled substance as the total weight of the mixture within which the controlled substance is contained, that section did not take effect until July 1, 2001, see chapter 2001-55, Laws of Florida, and appellant committed the offense with which he was charged on April 17, 2001.
Pursuant to our reasoning in Foster v. State, 861 So. 2d 434 (Fla. 1st DCA 2002), review denied 880 So. 2d 1212 (Fla. 2004), we are unable to apply the amended statute in this case. We, therefore, reverse the conviction, vacate the sentence, and direct that the charges be reduced to possession of cocaine and that the defendant be resentenced.
WEBSTER and HAWKES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jamil White v. State, 977 So. 2d 680 (Fla. 1st DCA 2008)…ailed to prove the weight of the cocaine, appellate counsel did not argue this point in the direct appeal. This Court per curiam affirmed the judgment and sentence in White v. State, 888 So. 2d 629 (Fla. 1st DCA 2004). Thereafter, in Terry v. State, 892 So. 2d 1132 (Fla. 1st DCA 2004), this Court reversed Terry’s conviction for trafficking in cocaine because we concluded that the state had failed to prove the weight of the cocaine. We ordered that Terry’s conviction be reduced to possession of cocaine. The ap…
Authorities Cited
- Kathyrn Hayes v. State, 750 So. 2d 1 (Fla. 1999)
- Foster v. State, 861 So. 2d 434 (Fla. 1st DCA 2001)
- Rutherford v. State, 880 So. 2d 1212 (Fla. 2004)
- Ankiel v. State, 479 So. 2d 263 (Fla. 5th DCA 1985)