Opinion
No. 83-833.
November 1, 1984. On Rehearing December 13, 1984.
Appeal from the Circuit Court for Hernando County, L.R. Huffstetler, J.
James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
Mobley appeals from the trial court's revocation of her probation, and sentence of one year imprisonment. She pleaded nolo contendere to Count II of an information which stated in relevant part:
DORIS MOBLEY of the County of Hernando, and the State of Florida, on the 18th day of November, 1981, in the County and State aforesaid did unlawfully and feloniously sell or deliver to another person, Cannabis, a controlled substance commonly known as Marijuana, in violation of Florida Statute 893.3(1)(a)(2) [ 893.13(1)(a)(2)]. . . . (Emphasis supplied).
The information fails to allege that the delivery was for an amount in excess of twenty grams or that it was for consideration. The information charges Mobley with committing a felony, or alternatively, a misdemeanor.
State v. Stewart 374 So.2d 1381 (Fla. 1979); Boley v. State, 273 So.2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So.2d 668 (Fla. 1973); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So.2d 99 (Fla. 1973).
In Young v. State, 439 So.2d 306 (Fla. 5th DCA 1983), we held that a similarly worded information did not properly invoke the jurisdiction of the circuit court, because it failed to charge the commission of a felony. See also Nelson v. State, 398 So.2d 920 (Fla. 5th DCA 1981). However, we recently receded from that view. Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984). Accordingly, the judgment is
AFFIRMED.
ORFINGER, J., concurs.
COWART, J., dissents with opinion.
ON MOTION FOR REHEARING
On motion for rehearing, Mobley correctly points out that we misstated the fact she was sentenced for one year as to Count II, the ruling she was appealing. The record shows she was sentenced to thirty months on Count II.
We hereby grant the motion for rehearing, and amend our prior opinion as indicated above. Otherwise, it is affirmed.
MOTION GRANTED; OPINION AMENDED.
ORFINGER and COWART, JJ., concur.
I dissent for the reasons stated in the dissent in Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984), and the dissent in Ramsey v. State, 456 So.2d 973 (Fla. 5th DCA 1984).