LEWIS BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the conviction is affirmed, the sentence must be reduced to reflect the maximum penalty for the higher offense, as the jury was misinformed about sentencing.
Appellant was convicted of sale and possession of heroin. The trial judge erroneously instructed the jury that the maximum sentence for each offense w…
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McNULTY, Chief Judge.
Appellant appeals a judgment and sentence for sale and possession of heroin. In instructing the jury, the trial judge erroneously stated that the maximum possible sentences for possession and for sale of heroin were five years each, but since it was a single transaction the maximum penalty imposable would be a single five years. This was a wrong charge, of course, since the maximum sentence for the sale of heroin is fifteen years.1
Appellant was found guilty as charged. The court imposed a single ten year sentence. Appellant now insists that he is entitled to a new trial. We disagree.
Appellant makes no valid contention that the evidence is insufficient to support the verdicts of guilty and the judgments entered thereon. The gravamen of his complaint must necessarily be that had the jury known of the severity of the offenses with which he was charged they may well have “pardoned” him. While we might deny a jury’s right to pardon, we think the interests of justice would be best served in a case such as this if the penalty imposed is appropriate to the severity of the offense of which the jury thought him guilty. Accordingly, in the instant case, the sentence should be reduced to five years.2
In view whereof the judgments are affirmed but the cause is remanded with directions that a single sentence of five years be imposed for the higher offense of sale of heroin. We ordain, too, that it will not be necessary for appellant to be present at resentencing.
GRIMES and SCHEB, JJ., concur. . Sections 893.13(1) (a) (1) and 775.082, F.S. 1975.
. See Burt v. State (Fla.App. 1st, 1976), 330 So. 2d 472; Stern v. State (Fla.App. 3rd, 1974), 296 So. 2d 549.
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Nappier v. State, 354 So. 2d 929 (Fla. 2d DCA 1978)…contends the trial judge erroneously instructed the jury on the maximum penalty for “strong-arm” robbery. Appellant urges that, because of this error, he is entitled to have his thirty-year sentence reduced to fifteen years, citing Bryant v. State, 334 So. 2d 160 (Fla. 2d DCA 1976); Burt v. State, 330 So. 2d 472 (Fla. 1st DCA 1976); and Stern v. State, 296 So. 2d 549 (Fla. 3d DCA 1974). We disagree and affirm. During his charge on the law, the trial judge, without objection, instructed the jury on the appli…
Authorities Cited
- Anderson v. Jefferson Stores, Inc., 296 So. 2d 549 (Fla. 3d DCA 1974)
- Stern v. State, 296 So. 2d 549 (Fla. 3d DCA 1974)
- Burt v. State, 330 So. 2d 472 (Fla. 1st DCA 1976)