Opinion
No. 88-2413.
May 8, 1991.
Appeal from the Circuit Court, Broward County, Patti Englander Henning, J.
Richard L. Jorandby, Public Defender and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Miles Ferris, Asst. Atty. Gen., West Palm Beach, for appellee.
ON MOTION FOR REHEARING
We grant rehearing and substitute the following in the place of our prior opinion:
This appeal challenges the constitutionality of section 893.13(1)(e), Florida Statutes (1987). Appellant pled nolo contendere to a violation of that statute without reserving his right to appeal. Therefore, he has waived his right to challenge it, although such a challenge would be unavailing in any event in light of Burch v. State, 558 So.2d 1 (Fla. 1990).
Additionally, appellant was convicted and sentenced for simple possession of cocaine, which conviction and sentence he challenges on the grounds of double jeopardy based on Carawan v. State, 515 So.2d 161 (Fla. 1987). While appellant pled nolo contendere to the charges, based on this court's recent opinion in Arnold v. State, 578 So.2d 515 (Fla. 4th DCA 1991), we hold that appellee in this case did not waive his right to challenge both his conviction or sentence by entering his plea. Under Carawan, dual convictions and sentences for possession with intent to deliver the same cocaine cannot stand. See Arnold.
We therefore affirm in part and reverse in part and remand with instructions to vacate the conviction and sentence for simple possession of cocaine.
GLICKSTEIN, WARNER and GARRETT, JJ., concur.