Collins v. State

District Court of Appeal of Florida

Collins v. State

271 So. 2d 156, 1972 Fla. App. LEXIS 5670

CourtDistrict Court of Appeal of Florida

DecidedNovember 30, 1972

DocketNo. 71-1070

StatusPublished

Cited by8 cases

This text of 271 So. 2d 156 (Collins v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Collins v. State, 271 So. 2d 156, 1972 Fla. App. LEXIS 5670 (Fla. Ct. App. 1972).

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PER CURIAM.

Appellant was charged in two counts of having, during the month of September, 1971, unlawfully delivered to another a quantity of marijuana in violation of Section 404.02, F.S.1971, F.S.A. Upon jury trial, appellant was found guilty on each count, and was thereupon adjudged guilty and sentenced to two years in the state prison on each count, the sentences to run consecutively.

Of the several points raised by appellant, all are without merit except the one relating to being sentenced for a felony. The information failed to allege either (1) that the defendant had been previously convicted of a violation of the Drug Abuse Law, or (2) that the delivery was for a consideration, or (3) the amount of marijuana delivered exceeded five grams. At least one of these allegations would [157]*157necessarily have to 'be contained in the information in order to constitute the crime a felony under Section 404.15, F.S. 1971, F.S.A. The Second District Court of Appeal has expressed a similar view in two recent decisions. See Pope v. State, Fla.App., 268 So.2d 173, Opinion filed September 27, 1972, and Carr v. State, Fla.App., 267 So.2d 684, Opinion filed October 6, 1972.

The judgment of guilt on each count is affirmed. The sentence on each count is vacated and set aside and this cause is remanded with instructions that appellant be sentenced on each count for a misdemeanor of the first degree.

Affirmed in part; reversed in part and remanded.

OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.

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PER CURIAM.

Appellant was charged in two counts of having, during the month of September, 1971, unlawfully delivered to another a quantity of marijuana in violation of Section 404.02, F.S.1971, F.S.A. Upon jury trial, appellant was found guilty on each count, and was thereupon adjudged guilty and sentenced to two years in the state prison on each count, the sentences to run consecutively.

Of the several points raised by appellant, all are without merit except the one relating to being sentenced for a felony. The information failed to allege either (1) that the defendant had been previously convicted of a violation of the Drug Abuse Law, or (2) that the delivery was for a consideration, or (3) the amount of marijuana delivered exceeded five grams. At least one of these allegations would [157]*157necessarily have to 'be contained in the information in order to constitute the crime a felony under Section 404.15, F.S. 1971, F.S.A. The Second District Court of Appeal has expressed a similar view in two recent decisions. See Pope v. State, Fla.App., 268 So.2d 173, Opinion filed September 27, 1972, and Carr v. State, Fla.App., 267 So.2d 684, Opinion filed October 6, 1972.

The judgment of guilt on each count is affirmed. The sentence on each count is vacated and set aside and this cause is remanded with instructions that appellant be sentenced on each count for a misdemeanor of the first degree.

Affirmed in part; reversed in part and remanded.

OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.

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271 So. 2d 156, 1972 Fla. App. LEXIS 5670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-state-fladistctapp-1972.

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