JOHN J. MCCLAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WALDEN, Judge.
Defendant was tried by jury, convicted and sentenced to two and one-half years imprisonment for possession of marijuana, contrary to the provisions of Section 404.-15(1), F.S.1971, F.S.A. This offense is a felony. He now appeals upon the premise that the trial court erred in refusing to give the defendant’s requested instruction of the lesser included offense of attempt to possess marijuana, such attempt being a misdemeanor. We reverse upon authority of Ward v. State, Fla.App.1973, 287 So. 2d 138, Opinion filed December 21, 1973. We remand with respectful instructions that, upon the State’s election, the defendant be sentenced for a misdemeanor under the provisions of Section 776.04(3), F.S.1971, F.S.A., or in the alternative he granted a new trial.
Reversed and remanded.
DOWNEY, J., and COWART, JOE A, Jr., Associate Judge, concur.
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Lightfoot v. State, 331 So. 2d 388 (Fla. 2d DCA 1976)…he sale of heroin with instructions that upon the state’s election, the appellant shall either be adjudicated guilty of attempted sales of heroin, or in the alternative be granted a new trial on the sale charges. McCann v. State, Fla.App. 4th, 1974, 288 So. 2d 285. The judgments of conviction for possession of heroin are affirmed. Appellant must be resentenced on all judgments. McNULTY, C. J., and HOBSON, J., concur.…
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Dane Craig Garrison v. State, 340 So. 2d 1171 (Fla. 4th DCA 1976)…d not to be applicable where the jury, if it had been properly instructed on attempts, could have found appellant guilty of a mis [*1173] demeanor. Without such an instruction the jury was not afforded such an opportunity. Next, in McClam v. State, 288 So. 2d 285 (Fla. 4th DCA 1974), we found reversible error in the trial court’s failure to give appellant’s requested instruction on the lesser included offense of attempt to possess marijuana. Appellant was convicted of a felony. The lesser offense of attempt…
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Smith v. State, 340 So. 2d 1216 (Fla. 4th DCA 1976)…the State’s election, the appellant shall be either adjudged guilty and sentenced for a second degree felony under § 740.011(5), or in the alternative be granted a new trial. Lightfoot v. State, 331 So. 2d 388 (Fla. 2nd DCA 1976); McClain v. State, 288 So. 2d 285 (Fla. 4th DCA 1974). ADAMS, ALTO, Associate Judge, concurs. WALKER, WILLIAM L., Associate Judge, dissents, with opinion. . 794.011(3) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and i…
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- Ward v. State, 287 So. 2d 138 (Fla. 4th DCA 1973)