Bacchus v. State

572 So. 2d 568, 1991 Fla. App. LEXIS 174, 1991 WL 2729

• Court: District Court of Appeal of Florida
• Decided: January 16, 1991
• Docket: No. 88-2132
• Status: Published

Opinion

PER CURIAM.

Appellant was convicted on Count I of purchasing cocaine within 1,000 feet of a school and possession of cocaine on Count II, and sentenced to concurrent terms of two and one-half years’ imprisonment.

Appellant concedes that his constitutional challenge to section 893.13(l)(e), Florida Statutes, has been mooted by Burch v. State, 558 So.2d 1 (Fla.1990). Furthermore, since the crime occurred between December 10, 1987, and July 1, 1988, Carawan v. State, 515 So.2d 161 (Fla.1987), controls ¹ and neither a conviction nor sentence for possession of cocaine can be had in conjunction with a conviction and sentence for purchasing cocaine at the same time and place.

Accordingly, the conviction and sentence on Count I for purchasing cocaine within 1,000 feet of a school is affirmed, but the conviction and sentence for possession of cocaine on Count II is reversed.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, GUNTHER and GARRETT, JJ., concur.

1 . Rehearing was denied in Carawan on December 10, 1987, and section 775.021(4) was amended on July 1, 1988. Application of the amended statute to a crime committed prior to July 1, 1988, would constitute a prohibited ex post facto application of the statute.