CHARLES F. CARR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Carr was convicted of selling and possessing marijuana and pleaded guilty to three charges. The court affirmed the conviction for sale of marijuana but reversed convictions for possession because the charging documents failed to allege the requisite elements of felony-level possession under Florida drug law.
The court affirmed the conviction for sale of marijuana under Chapter 404, finding that any amount sold constitutes a felony of the third degree. However, the court reversed the possession charges because the informations failed to allege that Carr possessed more than five grams or had a prior drug conviction, which are necessary elements for felony-level possession charges.
[1] A charge of selling marijuana under Chapter 404, Florida Statutes, is a felony of the third degree.
[2] A criminal information for possession of marijuana must allege that the defendant possessed more than five grams or had a prior conviction under the drug abuse law to est…
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Join FLexlaw to unlock all legal intelligence“The word 'delivery' means selling, dispensing, giving away, leaving with, or supplying in any other manner.”
Definition of 'delivery' under Florida drug law showing that sale of any amount of marijuana constitutes the offense
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Join FLexlaw to unlock all legal intelligenceOn January 26, 1972, Carr was charged in a two-count information with selling and possessing marijuana in violation of Chapter 404, Fla.Stat. He was a…
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Appellant was charged in a two count information with selling and possessing marijuana on January 26, 1972, in violation of Chapter 404, Fla.Stat.1971, F.S.A. Appellant was again charged with violation of Florida Drug Abuse Law on February 7, 1972, in information No. 23,796.
The appellant intelligently waived right of counsel and plead guilty to both counts of the January 26, 1972, information and to the offense of February 7, 1972. The trial judge accepted the plea and sentenced the appellant to the State prison for a term of six months to one year with credit for time spent in jail.
*685The public defender was subsequently appointed to represent the appellant in this appeal in which the two cases were consolidated. The public defender filed an “An-ders” type brief, stating there was nothing which would arguably support an appeal.
As to Count I in the information of January 26, 1972, charging sale of marijuana contrary to Ch. 404, Fla.Stat., F.S. A., the public defender is correct. Chapter 404.01(4) provides:
“The word ‘delivery’ means selling, dispensing, giving away, leaving with, or supplying in any other manner.”
The penalty is set forth in Ch. 404.15(1):
“For a first conviction he shall be guilty of a felony of the third degree, punishable as provided in sections 775.-082, 775.083, and 775.084; . . .”
Therefore, Ch. 404, Fla.Stat., F.S.A., makes the sale of marijuana in any amount punishable as a felony of the third degree.
As to Count II of the January 26, 1972 information, and the information of February 7, 1972, we reverse on the authority of a recent opinion from this court, Pope v. State, 268 So.2d 173, dated September 27, 1972. The accusatory writ in Count II does not allege a felony in that it fails to state that the defendant Carr had more than five grams in his possession or was previously convicted under the drug abuse law. Therefore, the Circuit Court in Pinellas County is without jurisdiction. The information of February 7, 1972, must fail for the same reason.
Affirmed in part, reversed in part and remanded with directions to quash Count II of information 23,770 and information 23,796, with leave either to amend or to refile in the appropriate court.
PIERCE, C. J., and MANN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Collins v. State, 271 So. 2d 156 (Fla. 4th DCA 1972)…me a felony under Section 404.15, F.S. 1971, F.S.A. The Second District Court of Appeal has expressed a similar view in two recent decisions. See Pope v. State, Fla.App., 268 So. 2d 173, Opinion filed September 27, 1972, and Carr v. State, Fla.App., 267 So. 2d 684, Opinion filed October 6, 1972. The judgment of guilt on each count is affirmed. The sentence on each count is vacated and set aside and this cause is remanded with instructions that appellant be sentenced on each count for a misdemeanor of the fir…
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Vincent LAW v. State, 292 So. 2d 596 (Fla. 2d DCA 1974)…sessed by the appellant exceeded five grams as provided in Section 404.15, Florida Statutes, F.S.A. Appellant’s reliance for reversal upon the law enunciated in Pope v. State, Fla.App.2nd, 1972, 268 So. 2d 173, and Carr v. State, Fla.App.2nd, 1972, 267 So. 2d 684, is not well placed. The case sub judice is distinguishable from Pope and Carr, supra, in that the informations here were amended prior to trial to include the allegation that the quantity of marijuana possessed by appellant exceeded five grams as p…
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State v. Carr, 283 So. 2d 101 (Fla. 1973)…PER CURIAM. The petition for writ of certiorari directed to the 2nd District’s opinion report [*102] ed at 267 So. 2d 684 (1972), reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter we have determined that the cited decisions present no direct conflict as required by Article…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)