Collings v. State

684 So. 2d 879, 1996 Fla. App. LEXIS 13148, 1996 WL 724278

Opinion

PER CURIAM.

Affirmed. As to the failure to instruct the jury on the fourth element of drug trafficking, as required by State v. Dominguez, 509 So.2d 917 (Fla.1987), appellant’s defense challenged his knowledge that packages containing any substance were in the vehicle he was driving, not his knowledge that the substances in the packages were cocaine and marijuana. Therefore, the failure to instruct was not fundamental error and required an objection to preserve the issue for appeal. State v. Delva, 575 So.2d 643 (Fla.1991). The remaining issues as to the conviction were not preserved for appeal. However,’ the state concedes that the sentence for possession of marijuana with intent to sell/deliver exceeded the guidelines without written reasons for departure. We therefore reverse the sentence on count II and remand for resentencing within the guidelines.

Affirmed in part; reversed in part; and remanded.

STONE, WARNER and STEVENSON, JJ., concur.