DONALD COLLINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for felony marijuana delivery was affirmed, but sentences were vacated and remanded for resentencing as misdemeanors because the information failed to allege facts necessary to elevate the offense to felony status.
An information charging marijuana delivery must allege either prior drug conviction, delivery for consideration, or quantity exceeding five grams to constitute a felony; absent such allegations, the offense is a misdemeanor.
[1] An information charging marijuana delivery must allege either prior drug conviction, delivery for consideration, or quantity exceeding five grams to constitute a felony under Section 404.15, F.S. …
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Join FLexlaw to unlock all legal intelligenceCollins was charged with two counts of unlawfully delivering marijuana in September 1971 and was convicted by jury and sentenced to two years in priso…
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Appellant was charged in two counts of having, during the month of September, 1971, unlawfully delivered to another a quantity of marijuana in violation of Section 404.02, F.S.1971, F.S.A. Upon jury trial, appellant was found guilty on each count, and was thereupon adjudged guilty and sentenced to two years in the state prison on each count, the sentences to run consecutively.
Of the several points raised by appellant, all are without merit except the one relating to being sentenced for a felony. The information failed to allege either (1) that the defendant had been previously convicted of a violation of the Drug Abuse Law, or (2) that the delivery was for a consideration, or (3) the amount of marijuana delivered exceeded five grams. At least one of these allegations would *157necessarily have to 'be contained in the information in order to constitute the crime 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 first degree.
Affirmed in part; reversed in part and remanded.
OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.
ON PETITION FOR REHEARING
We have granted appellee’s petition for re-hearing as to that portion of our opinion filed November 30, 1972 which erroneously directed the trial court to sentence appellant on each count for a misdemeanor of the first degree. The offenses having occurred prior to January 1, 1972 (the effective date of Chapter 71-136, Laws of 1971), appellant is subject to punishment under F.S. Section 404.15(1), F.S.A. as amended by Section 2 of Chapter 71-107, Laws of 1971. This provides for “imprisonment in the county jail for a period not exceeding one (1) year or by fine not exceeding one thousand dollars ($1,000)”. The opinion is modified accordingly, and on remand the trial court shall impose appropriate sentence on each count within these limitations, rather than for a misdemeanor of the first degree as directed in our original opinion.
OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.
PER CURIAM.
We have granted appellee’s petition for re-hearing as to that portion of our opinion filed November 30, 1972 which erroneously directed the trial court to sentence appellant on each count for a misdemeanor of the first degree. The offenses having occurred prior to January 1, 1972 (the effective date of Chapter 71-136, Laws of 1971), appellant is subject to punishment under F.S. Section 404.15(1), F.S.A. as amended by Section 2 of Chapter 71-107, Laws of 1971. This provides for “imprisonment in the county jail for a period not exceeding one (1) year or by fine not exceeding one thousand dollars ($1,000)”. The opinion is modified accordingly, and on remand the trial court shall impose appropriate sentence on each count within these limitations, rather than for a misdemeanor of the first degree as directed in our original opinion.
OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.
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Ellis v. State, 298 So. 2d 527 (Fla. 2d DCA 1974)…, 99 So. 334; Ex parte Browne, 1927, 93 Fla. 332, 111 So. 518; Bazarte v. State, Fla.App.2d 1959, 114 So. 2d 500; Sing v. State, Fla. [*528] App.1st 1959, 115 So. 2d 773; Wood v. Cochran, Fla.1960, 118 So. 2d 193; Collins v. State, Fla.App.4th 1972, 271 So. 2d 156. Affirmed. McNULTY and GRIMES, JJ-, concur.…
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Cooper v. Louie L. Wainwright, 308 So. 2d 182 (Fla. 4th DCA 1975)…y provision in existence at the time of the alleged offense controls. Raines v. State, Fla. 1900, 42 Fla. 141, 28 So. 57; Turner v. State, Fla.1924, 87 Fla. 155, 99 So. 334; Wood v. Cochran, Fla. 1960, 118 So. 2d 193; Collins v. State, Fla.App.1972, 271 So. 2d 156; Ellis v. State, Fla.App. 1974, 298 So. 2d 527; Rozinski v. State, Fla.App. 1974, 298 So. 2d 546. The second point challenges the legality of the five year consecutive sentence under Count II for aggravated assault. We agree with appellant on this…
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Patterson v. State, 313 So. 2d 712 (Fla. 1975)…. 2d 512 (Fla.App.1973). . 290 So. 2d 72 (Fla.App.1974). . See Note 3, supra, 268 So. 2d at 175. . Presently renumbered as Section 893.13(1) (f), Florida Statutes. .Presently incorporated in Section 893.13, Florida Statutes. . Collins v. State, 271 So. 2d 156 (Fla.App.1973) ; cert. denied, 276 So. 2d 170.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- Mass. Cas. Ins. Co. v. Steiger, 267 So. 2d 684 (Fla. 3d DCA 1972)
- Carr v. State, 267 So. 2d 684 (Fla. 2d DCA 1972)