Mixon v. State

District Court of Appeal of Florida

Mixon v. State

528 So. 2d 523, 13 Fla. L. Weekly 1753, 1988 Fla. App. LEXIS 3181, 1988 WL 74777

CourtDistrict Court of Appeal of Florida

DecidedJuly 20, 1988

DocketNo. 86-2442

StatusPublished

This text of 528 So. 2d 523 (Mixon 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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Mixon v. State, 528 So. 2d 523, 13 Fla. L. Weekly 1753, 1988 Fla. App. LEXIS 3181, 1988 WL 74777 (Fla. Ct. App. 1988).

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Opinion

RYDER, Acting Chief Judge.

Appellant was charged with one count of possession of cocaine with intent to sell or deliver and two counts of sale or delivery of cocaine in violation of section 893.-13(l)(a)(l), Florida Statutes (1985). All counts arose out of an incident on February 11, 1986. Appellant filed a motion to dismiss the possession of cocaine with intent to sell or deliver charge on double jeopardy grounds. The trial court denied his motion. ■ Appellant pled nolo contendere to all three counts, specifically reserving his right to appeal the denial of his motion to dismiss.

On appeal, appellant contends that the trial court erred in convicting appellant of both possession of cocaine with intent to sell and sale of cocaine. We agree. See Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988).

We reverse and remand with instructions to vacate either the conviction for possession of cocaine with intent to sell or deliver charge or one of the convictions for [524]*524sale/delivery of the cocaine. The trial court is to recalculate appellant’s sentence on the remaining count.

DANAHY and THREADGILL, JJ., concur.

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RYDER, Acting Chief Judge.

Appellant was charged with one count of possession of cocaine with intent to sell or deliver and two counts of sale or delivery of cocaine in violation of section 893.-13(l)(a)(l), Florida Statutes (1985). All counts arose out of an incident on February 11, 1986. Appellant filed a motion to dismiss the possession of cocaine with intent to sell or deliver charge on double jeopardy grounds. The trial court denied his motion. ■ Appellant pled nolo contendere to all three counts, specifically reserving his right to appeal the denial of his motion to dismiss.

On appeal, appellant contends that the trial court erred in convicting appellant of both possession of cocaine with intent to sell and sale of cocaine. We agree. See Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988).

We reverse and remand with instructions to vacate either the conviction for possession of cocaine with intent to sell or deliver charge or one of the convictions for [524]*524sale/delivery of the cocaine. The trial court is to recalculate appellant’s sentence on the remaining count.

DANAHY and THREADGILL, JJ., concur.

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Bluebook (online)

528 So. 2d 523, 13 Fla. L. Weekly 1753, 1988 Fla. App. LEXIS 3181, 1988 WL 74777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mixon-v-state-fladistctapp-1988.

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