Florida District Courts of Appeal, 1991

Morales v. State

Morales v. State
Florida District Courts of Appeal · Decided February 6, 1991 · Downey, Frank, Hersey, Richard
573 So. 2d 449; 1991 Fla. App. LEXIS 796; 1991 WL 11639 (Southern Reporter, Second Series)

Morales v. State

Opinion of the Court

PER CURIAM.

Appellant was convicted of and sentenced for purchase of cocaine within 1000 *450feet of a school, and possession of that same cocaine.

We reject appellant’s contention that the statute under which he was convicted is unconstitutional. Burch v. State, 558 So.2d 1 (Fla. 1990).

However, the parties agree that it was error to convict appellant of both purchase and possession where both convictions arose out of the same transaction and involved the same cocaine rock. This case is governed by Carawan v. State, 515 So.2d 161 (Fla. 1987). Appellant committed the offense in March of 1988. This is subsequent to Carawan, but before the effective date of the amendment to section 775.-021(4), Florida Statutes (Supp. 1988), which superceded the result in Carawan. We therefore reverse the conviction of possession.

As a practical matter, this does not affect appellant’s sentence, because the court sentenced appellant to serve his time for the two convictions concurrently.

We therefore reverse the conviction for possession of cocaine and remand with instructions to vacate this aspect of the judgment and sentence. In all other respects we affirm.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

HERSEY, C.J., DOWNEY, J., and FRANK, RICHARD H., Associate Judge, concur.

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