S.N. v. State

District Court of Appeal of Florida

S.N. v. State

463 So. 2d 343, 10 Fla. L. Weekly 148, 1985 Fla. App. LEXIS 11914

CourtDistrict Court of Appeal of Florida

DecidedJanuary 10, 1985

DocketNo. 84-108

StatusPublished

Cited by2 cases

This text of 463 So. 2d 343 (S.N. 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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S.N. v. State, 463 So. 2d 343, 10 Fla. L. Weekly 148, 1985 Fla. App. LEXIS 11914 (Fla. Ct. App. 1985).

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Opinion

SHARP, Judge.

S.N. appeals from an order of adjudication and an order of commitment to the Department of Health and Rehabilitative [344]*344Services. He was charged with possession of less than twenty grams of cannabis¹ in Count I and sale or delivery of cannabis² in Count II. He argues that his adjudication under Count II was erroneous because the record only sustains a finding he possessed cannabis with the intent to sell it. These acts constitute a criminal charge under section 893.13, Florida Statutes (1983),³ but these are not the ones with which he was charged by the state in its petition for delinquency. We agree.

The state argues that it proved an attempted delivery, and therefore, a delivery. Pursuant to Milazzo v. State, 377 So.2d 1161 (Fla.1979), proof of attempted delivery constitutes delivery under section 893.02(4), Florida Statutes (1983)⁴ because delivery is defined as an attempt.

In this case the record established that a sales transaction was aborted before there was even an agreement on price, and there was no attempt to deliver. In Milazzo, the supreme court stated that an attempted sale does not constitute a sale. Obviously, proof of an aborted sale does not equate to an attempted delivery.

The trial court founded its adjudication under Count II as “possession with intent to sell.” Although the evidence presented would have sustained an adjudication on this count, this was not the crime with which S.N. was charged. Therefore, this adjudication cannot be sustained. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Ray v. State, 403 So.2d 956 (Fla.1981); Perkins v. Mayo, 92 So.2d 641 (Fla.1957).

Accordingly, the order appealed is reversed as to Count II and this proceeding is remanded to the lower court for the purpose of considering whether commitment is proper on Count I alone, since the more serious offense charged in Count II has been eliminated.

REVERSED IN PART; REMANDED IN PART.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

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SHARP, Judge.

S.N. appeals from an order of adjudication and an order of commitment to the Department of Health and Rehabilitative [344]*344Services. He was charged with possession of less than twenty grams of cannabis¹ in Count I and sale or delivery of cannabis² in Count II. He argues that his adjudication under Count II was erroneous because the record only sustains a finding he possessed cannabis with the intent to sell it. These acts constitute a criminal charge under section 893.13, Florida Statutes (1983),³ but these are not the ones with which he was charged by the state in its petition for delinquency. We agree.

The state argues that it proved an attempted delivery, and therefore, a delivery. Pursuant to Milazzo v. State, 377 So.2d 1161 (Fla.1979), proof of attempted delivery constitutes delivery under section 893.02(4), Florida Statutes (1983)⁴ because delivery is defined as an attempt.

In this case the record established that a sales transaction was aborted before there was even an agreement on price, and there was no attempt to deliver. In Milazzo, the supreme court stated that an attempted sale does not constitute a sale. Obviously, proof of an aborted sale does not equate to an attempted delivery.

The trial court founded its adjudication under Count II as “possession with intent to sell.” Although the evidence presented would have sustained an adjudication on this count, this was not the crime with which S.N. was charged. Therefore, this adjudication cannot be sustained. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Ray v. State, 403 So.2d 956 (Fla.1981); Perkins v. Mayo, 92 So.2d 641 (Fla.1957).

Accordingly, the order appealed is reversed as to Count II and this proceeding is remanded to the lower court for the purpose of considering whether commitment is proper on Count I alone, since the more serious offense charged in Count II has been eliminated.

REVERSED IN PART; REMANDED IN PART.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

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463 So. 2d 343, 10 Fla. L. Weekly 148, 1985 Fla. App. LEXIS 11914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sn-v-state-fladistctapp-1985.

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