Opinion
No. 78-454.
February 7, 1979. Rehearing Denied March 7, 1979.
Appeal from the Circuit Court, Pinellas County, Mark R. McGarry, Jr., J.
Jack O. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
Appellant was tried by jury and convicted of assault on a law enforcement officer, sale of marijuana, and possession of more than five grams of marijuana. He was sentenced to one year for the assault and to five years for the possession and sale of marijuana.
The evidence at trial established that appellant merely brought the parties to the drug sale together; there was no evidence that he was ever in actual or constructive possession of the marijuana. Accordingly, the judgment for possession of marijuana cannot stand and must be vacated. Daudt v. State, 368 So.2d 52 (Fla.2d DCA 1979). No other error having been made to appear, the judgment and sentence for assault on a law enforcement officer and the judgment for sale of marijuana are affirmed. Because only a single sentence was entered on both the conviction for sale of marijuana and the conviction for possession of marijuana, the cause is remanded for resentencing on the sale count only. Daudt v. State, supra. Appellant is entitled to be present at resentencing.
GRIMES, C.J., and SCHEB and DANAHY, JJ., concur.