Opinion
No. 88-2429.
January 18, 1990.
Appeal from the Circuit Court for Seminole County; Oscar H. Eaton, Jr., Judge.
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dee R. Ball, Asst. Atty. Gen., Daytona Beach, for appellee.
Smith appeals his dual convictions and sentences for sale or delivery of cocaine, and possession of the same cocaine. The crimes were committed prior to the effective date of the amendment to section 775.21(4), Florida Statutes (Supp. 1988). Therefore, both convictions cannot be upheld. State v. Burton, 555 So.2d 1210 (Fla. 1989), Carawan v. State, 515 So.2d 161 (Fla. 1987); Garrison v. State, 530 So.2d 365 (Fla. 5th DCA 1988).
Section 893.13(1)(a)1., Florida Statutes (1987); a second degree felony.
Section 893.13(1)(f), Florida Statutes (1987), a third degree felony.
Accordingly, the lesser crime conviction is quashed, and the conviction for sale of cocaine is affirmed. State v. Barton, 523 So.2d 152 (Fla. 1988). Because Smith's scoresheet will not be altered by this reversal, since he will remain in the "any non-state prison sanction" bracket, we also affirm his sentence of five years probation for the sale offenses.
AFFIRMED in part; REVERSED in part.
COBB and GOSHORN, JJ., concur.