King v. State

572 So. 2d 35, 1991 Fla. App. LEXIS 77, 1991 WL 692

Opinion

PER CURIAM.

The major issues on appeal are controlled by Burch v. State, 558 So.2d 1 (Fla.1990), which requires an affirmance. There is one exception, however. Appellant committed the crimes in question on January 22, 1988. He was convicted of both purchase of cocaine at or near a school and possession of cocaine. This was impermissible under the law applicable at the time of commission of the offense. Carawan v. State, 515 So.2d 161 (Fla.1987). See also Smith v. State, 524 So.2d 461 (Fla. 4th DCA 1988), approved, 547 So.2d 613 (Fla.1989). Vacating the conviction and sentence for possession does not affect the recommended range for sentencing on the primary offense, thus resentencing will not be necessary. Davis v. State, 562 So.2d 443 (Fla. 2d DCA 1990); Lewis v. State, 545 So.2d 427 (Fla. 2d DCA 1989), approved, 556 So.2d 1103 (Fla.1990).

On remand the court is instructed to vacate the conviction and sentence for possession of cocaine.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

HERSEY, C.J., and DOWNEY and GLICKSTEIN, JJ., concur.