Edwards v. State

581 So. 2d 239, 1991 Fla. App. LEXIS 5349, 1991 WL 99926

Opinion

DAUKSCH, Judge.

This is an appeal from a judgment and sentence in a cocaine delivery case.

The trial court did not err in refusing to give the jury an instruction on, or a verdict form for, possession of cocaine. That crime was not charged and it is not a lesser included offense. State v. McCloud, 577 So.2d 939 (Fla. 1991); State v. V.A.A., 577 So.2d 941 (Fla.1991).

The court did err in sentencing appellant as an adult when he was under eighteen years of age at the time the crime was committed, especially because the judge did not comply with section 39.111, Florida Statutes (1989). Leach v. State, 545 So.2d 520 (Fla. 5th DCA 1989); Smith v. State, 543 So.2d 419 (Fla. 5th DCA 1989); Keith v. State, 542 So.2d 440 (Fla. 5th DCA 1989).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

GOSHORN and PETERSON, JJ., concur.