Opinion
No. 77-248.
September 7, 1977. Rehearing Denied September 29, 1977.
Appeal from the Circuit Court, Hillsborough County, Robert W. Rawlins, Jr., J.
Jack O. Johnson, Public Defender, James A. Cornelius, Asst. Public Defender, and Lawrence D. Shearer, Legal Intern, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of possessing a controlled substance with intent to deliver and delivering a controlled substance. Both crimes were charged under Section 893.13(1)(a)1, Florida Statutes (1975). Both crimes occurred during a single episode in which the appellant delivered heroin to an undercover agent.
Appellant received a fifteen year sentence on count I and a five year concurrent sentence on count II. The sentence on count II must be set aside because both of the crimes were a facet of the same transaction. Orange v. State, 334 So.2d 277 (Fla. 3d DCA 1976). The state's reliance upon Section 775.021(4), Florida Statutes (Supp. 1976), is misplaced because this new statute only mandates separate sentencing where a person has committed an act in the course of one criminal transaction which constitutes a violation of two or more criminal statutes.
Appellant's second point is without merit.
The judgments and the sentence on count I are affirmed. The sentence on count II is hereby set aside.
GRIMES, A.C.J., and SCHEB and OTT, JJ., concur.