D.G.R. v. State

District Court of Appeal of Florida

D.G.R. v. State

376 So. 2d 460, 1979 Fla. App. LEXIS 16062

CourtDistrict Court of Appeal of Florida

DecidedNovember 2, 1979

DocketNo. NN-17

StatusPublished

Cited by1 cases

This text of 376 So. 2d 460 (D.G.R. 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.

Bluebook

D.G.R. v. State, 376 So. 2d 460, 1979 Fla. App. LEXIS 16062 (Fla. Ct. App. 1979).

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Opinion

PER CURIAM.

D.G.R. appeals his conviction of possession of marijuana arguing that the trial court erred in amending the petition to charge possession of marijuana although it originally charged that D.G.R. did “sell, deliver, or manufacture” marijuana. We agree.

Possession of marijuana is not a lesser included offense of sale of marijuana, just as possession of the hallucinogenic [461]*461drug, LSD, is not a lesser included offense of sale of LSD. McPhee v. State, 254 So.2d 406, 408 (Fla. 1st DCA 1971). Further, “sale” is nothing more than “delivery” with consideration. See Milazzo v. State, 359 So.2d 923, 924 (Fla. 3d DCA 1978). Accordingly, since the petition does not contain any allegations charging D.G.R. directly or by implication with the offense of possession, the petition fails to support the conviction under the theory it is a category for lesser included offense under Brown v. State, 206 So.2d 377 (Fla.1968). McPhee v. State, supra. The amendment to the petition, charging a wholly different crime, made after the state rested and being objected to by defense counsel, requires that appellant’s conviction for possession of marijuana be REVERSED.

McCORD, Acting C. J., SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.

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PER CURIAM.

D.G.R. appeals his conviction of possession of marijuana arguing that the trial court erred in amending the petition to charge possession of marijuana although it originally charged that D.G.R. did “sell, deliver, or manufacture” marijuana. We agree.

Possession of marijuana is not a lesser included offense of sale of marijuana, just as possession of the hallucinogenic [461]*461drug, LSD, is not a lesser included offense of sale of LSD. McPhee v. State, 254 So.2d 406, 408 (Fla. 1st DCA 1971). Further, “sale” is nothing more than “delivery” with consideration. See Milazzo v. State, 359 So.2d 923, 924 (Fla. 3d DCA 1978). Accordingly, since the petition does not contain any allegations charging D.G.R. directly or by implication with the offense of possession, the petition fails to support the conviction under the theory it is a category for lesser included offense under Brown v. State, 206 So.2d 377 (Fla.1968). McPhee v. State, supra. The amendment to the petition, charging a wholly different crime, made after the state rested and being objected to by defense counsel, requires that appellant’s conviction for possession of marijuana be REVERSED.

McCORD, Acting C. J., SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.

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Bluebook (online)

376 So. 2d 460, 1979 Fla. App. LEXIS 16062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dgr-v-state-fladistctapp-1979.

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