JOE HENRY PARHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction but vacated the second count sentence because the same substance was charged in both counts, leaving only the felony conviction for possession of a controlled substance.
When the same substance is charged in multiple counts—one as a controlled substance felony and one as possession of a prescription drug without a prescription—only the felony conviction may be sentenced.
[1] When identical contraband is charged as both a controlled substance felony and a prescription drug misdemeanor, sentencing is permissible only on the felony count.
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Join FLexlaw to unlock all legal intelligenceParham was charged in a two-count information with possession of a controlled substance and possession of a prescription drug without a prescription. …
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PER CURIAM.
Appellant was charged m a two-count information with possession of a controlled substance and possession of a prescription drug without a prescription. Appellant entered into a plea bargain providing that he would be sentenced to a maximum of three and one-half years to run concurrently with another three and one-half year sentence that he was then serving at Raiford. Pursuant thereto, appellant pled guilty to both counts, and the state nol-prossed a second information charging appellant with possession of a short barrel shotgun. Appellant was adjudicated guilty on both counts and given a sentence of three and one-half years in the state penitentiary to run concurrently with the sentence he was already serving. It appears that the substance which appellant was charged with possessing in each count of the information was the same substance. Hence, there can be no sentence for the second degree misdemean-or possession of a prescription drug without a prescription. Taylor v. State, Fla. App.2d, 1974, 289 So. 2d 772. Accordingly, the trial court is directed to correct its records to reflect that the three and one-half year sentence which was entered pursuant to the bargain is applicable only to the felony conviction of possession of a controlled substance under the first count of the information. Otherwise, the judgments and sentence are
AFFIRMED.
McNULTY, C. J., and HOBSON and GRIMES, JJ., concur.
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Citator
Authorities Cited
- Booker T. Taylor v. State, 289 So. 2d 772 (Fla. 2d DCA 1974)
- Sunnyhill S., Inc. v. AETNA Cas. & Sur. Co., 289 So. 2d 772 (Fla. 1st DCA 1974)