JAMES COWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant was convicted of two counts of possession of cocaine and two counts of sale of cocaine within 1000 feet of a school. He argues that his convictions for two counts on both charges, rather than one, violate double jeopardy. We agree that he can be convicted of only one count of possession, because the same cocaine was involved. He also argues that the state failed to prove that the sales had occurred within 1000 feet of a school, because there was no evidence as to the age of the students. We agree. State v. Roland, 577 So. 2d 680 (Fla. 4th DCA 1991) (kindergarten/preschool is not a school so as to warrant enhanced penalties under section 893.13(l)(c), Florida Statutes); State v. Lee, 583 So. 2d 1055 (Fla. 4th DCA 1991) (center for severely mentally retarded people aged five to twenty-five, not a school within meaning of statute). We accordingly affirm one conviction for possession of cocaine and remand the two convictions for sale within 1000 feet of a school to be reduced to the lesser included crime of sale of cocaine. We reject appellant’s argument that two counts of sale, which were to different buyers at about the same time, violate double jeopardy.
Reversed.
POLEN, KLEIN and MAY, JJ., concur.
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Augustin Fleurimond v. State, 10 So. 3d 1140 (Fla. 3d DCA 2009)…r, dual convictions for possession of the same type of drugs, found at the same time, even though found in different locations, also constitutes a double jeopardy violation. Wiggins v. State, 967 So. 2d 417, 418 (Fla. 1st DCA 2007); Coward v. State, 944 So. 2d 532 (Fla. 4th DCA 2006); McGlorthon v. State, 908 So. 2d 554, 556 (Fla. 2d DCA 2005); Jackson v. State, 418 So. 2d 456, 458 (Fla. 4th DCA 1982). Here, Fleurimond was convicted of two counts of trafficking in cocaine by possession and two counts of poss…
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Renald Joachin v. State, 83 So. 3d 997 (Fla. 4th DCA 2012)…re, wherever operated, and whether or not operated for profit.” See § 402.302(2), Fla. Stat. (2010). Accordingly, we reverse and remand for entry of a judgment and sentence to the lesser included charge of delivery of cocaine. See Coward v. State, 944 So. 2d 532, 533 (Fla. 4th DCA 2006) (reversing the defendant’s two convictions for sale within 1000 feet of a school because there was no evidence as to the age of the students and remanding with direction that the convictions be reduced to the lesser included…
Authorities Cited
- State v. LEE, 583 So. 2d 1055 (Fla. 4th DCA 1991)
- Brooks v. State, 577 So. 2d 680 (Fla. 4th DCA 1991)