Rodriquez v. State

District Court of Appeal of Florida

Rodriquez v. State

591 So. 2d 211, 1991 Fla. App. LEXIS 4150, 1991 WL 81219

CourtDistrict Court of Appeal of Florida

DecidedMay 8, 1991

DocketNo. 88-2413

StatusPublished

Cited by1 cases

This text of 591 So. 2d 211 (Rodriquez 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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Rodriquez v. State, 591 So. 2d 211, 1991 Fla. App. LEXIS 4150, 1991 WL 81219 (Fla. Ct. App. 1991).

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Opinion

ON MOTION FOR REHEARING

PER CURIAM.

We grant rehearing and substitute the following in the place of our prior opinion:

This appeal challenges the constitutionality of section 893.13(l)(e), Florida [212]*212Statutes (1987). Appellant pled nolo con-tendere to a violation of that statute without reserving his right to appeal. Therefore, he has waived his right to challenge it, although such a challenge would be unavailing in any event in light of Burch v. State, 558 So.2d 1 (Fla.1990).

Additionally, appellant was convicted and sentenced for simple possession of cocaine, which conviction and sentence he challenges on the grounds of double jeopardy based on Carawan v. State, 515 So.2d 161 (Fla.1987). While appellant pled nolo contendere to the charges, based on this court’s recent opinion in Arnold v. State, 578 So.2d 515 (Fla. 4th DCA 1991), we hold that appellee in this case did not waive his right to challenge both his conviction or sentence by entering his plea. Under Carawan, dual convictions and sentences for possession with intent to deliver the same cocaine cannot stand. See Arnold.

We therefore affirm in part and reverse in part and remand with instructions to vacate the conviction and sentence for simple possession of cocaine.

GLICKSTEIN, WARNER and GARRETT, JJ., concur.

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ON MOTION FOR REHEARING

PER CURIAM.

We grant rehearing and substitute the following in the place of our prior opinion:

This appeal challenges the constitutionality of section 893.13(l)(e), Florida [212]*212Statutes (1987). Appellant pled nolo con-tendere to a violation of that statute without reserving his right to appeal. Therefore, he has waived his right to challenge it, although such a challenge would be unavailing in any event in light of Burch v. State, 558 So.2d 1 (Fla.1990).

Additionally, appellant was convicted and sentenced for simple possession of cocaine, which conviction and sentence he challenges on the grounds of double jeopardy based on Carawan v. State, 515 So.2d 161 (Fla.1987). While appellant pled nolo contendere to the charges, based on this court’s recent opinion in Arnold v. State, 578 So.2d 515 (Fla. 4th DCA 1991), we hold that appellee in this case did not waive his right to challenge both his conviction or sentence by entering his plea. Under Carawan, dual convictions and sentences for possession with intent to deliver the same cocaine cannot stand. See Arnold.

We therefore affirm in part and reverse in part and remand with instructions to vacate the conviction and sentence for simple possession of cocaine.

GLICKSTEIN, WARNER and GARRETT, JJ., concur.

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591 So. 2d 211, 1991 Fla. App. LEXIS 4150, 1991 WL 81219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriquez-v-state-fladistctapp-1991.

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