Pickett v. State

573 So. 2d 177, 1991 Fla. App. LEXIS 269, 1991 WL 3570

Opinion

PER CURIAM.

We affirm appellant’s convictions for delivery of cocaine and escape.

Appellant’s conviction for possession of cocaine with intent to deliver must be vacated. Mincey v. State, 563 So.2d 811 (Fla. 2d DCA 1990).

Appellant was also convicted, initially, of “attempted resisting arrest with violence” as a lesser included offense of resisting arrest. Defense counsel apparently requested such an instruction at appellant’s jury trial. As recognized by both parties to this appeal, this is a nonexistent crime. Plummer v. State, 454 So.2d 769 (Fla. 1st DCA 1984). Upon discovering the error, the trial court correctly scheduled a retrial of the principal charge. Jordan v. State, 438 So.2d 825 (Fla.1983); Achin v. State, 436 So.2d 30 (Fla.1982). Appellant, after reviewing his options, then entered a plea. This decision cured any error stemming from the jury verdict, and we affirm the conviction and sentence imposed after appellant’s plea. However, the written judgment and sentence should be corrected to reflect that the conviction is for resisting arrest with violence, not the nonexistent crime of attempt.

Affirmed in part, reversed in part, and remanded with instructions.

DANAHY, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.