Antosanti v. State

572 So. 2d 37, 1991 Fla. App. LEXIS 83, 1991 WL 694

• Court: District Court of Appeal of Florida
• Decided: January 9, 1991
• Docket: No. 88-2651
• Status: Published

Opinion

DOWNEY, Judge.

Appellant, Efrain Antosanti, and his co-defendant, Angel Ayala, were tried jointly and convicted for purchasing cocaine within 1,000 feet of a school (Count I), possession of cocaine (Count II), and resisting arrest with violence (Count III), and each appellant was sentenced to three and one-half years’ imprisonment on Counts I and III, to be served concurrently.

In his appellate presentation, appellant initially attacked the constitutionality of the so-called “School Yard” drug sale statute, but now concedes that that position is no longer tenable in view of Burch v. State, 558 So.2d 1 (Fla.1990).

Thus, appellant’s remaining appellate points for our consideration assert error in not granting judgment of acquittal on the possession charge and in entering judgment of conviction on both the purchase and possession charges.

Since we hold it was error to find appellant guilty of the purchase and possession of the same contraband at the same time, pursuant to Carawan v. State, 515 So.2d 161 (Fla.1987), and State v. Glenn, 545 So.2d 903 (Fla. 4th DCA 1989), the point regarding error in failing to grant acquittal on the possession is mooted.

Accordingly, we affirm the convictions and sentences for resisting arrest with violence (Count III), and for purchasing cocaine within 1,000 of a school (Count I), and reverse the conviction for possession of cocaine (Count II). There was no sentence imposed on Count II.

AFFIRMED IN PART and REVERSED IN PART.

LETTS and DELL, JJ., concur.