Opinion
No. 71-1070.
November 30, 1972. Rehearing Denied January 16, 1973. As Modified on Rehearing January 16, 1973.
Appeal from the Court of Record for Broward County, William Clayton Johnson, J.
Robert T. Adams, Jr., Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and William W. Herring, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was charged in two counts of having, during the month of September, 1971, unlawfully delivered to another a quantity of marijuana in violation of Section 404.02, F.S. 1971, F.S.A. Upon jury trial, appellant was found guilty on each count, and was thereupon adjudged guilty and sentenced to two years in the state prison on each count, the sentences to run consecutively.
Of the several points raised by appellant, all are without merit except the one relating to being sentenced for a felony. The information failed to allege either (1) that the defendant had been previously convicted of a violation of the Drug Abuse Law, or (2) that the delivery was for a consideration, or (3) the amount of marijuana delivered exceeded five grams. At least one of these allegations would necessarily have to be contained in the information in order to constitute the crime a felony under Section 404.15, F.S. 1971, F.S.A. The Second District Court of Appeal has expressed a similar view in two recent decisions. See Pope v. State, Fla.App., 268 So.2d 173, Opinion filed September 27, 1972, and Carr v. State, Fla.App., 267 So.2d 684, Opinion filed October 6, 1972.
The judgment of guilt on each count is affirmed. The sentence on each count is vacated and set aside and this cause is remanded with instructions that appellant be sentenced on each count for a misdemeanor of the first degree.
Affirmed in part; reversed in part and remanded.
OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.
ON PETITION FOR REHEARING
We have granted appellee's petition for re-hearing as to that portion of our opinion filed November 30, 1972 which erroneously directed the trial court to sentence appellant on each count for a misdemeanor of the first degree. The offenses having occurred prior to January 1, 1972 (the effective date of Chapter 71-136, Laws of 1971), appellant is subject to punishment under F.S. Section 404.15(1), F.S.A. as amended by Section 2 of Chapter 71-107, Laws of 1971. This provides for "imprisonment in the county jail for a period not exceeding one (1) year or by fine not exceeding one thousand dollars ($1,000)". The opinion is modified accordingly, and on remand the trial court shall impose appropriate sentence on each count within these limitations, rather than for a misdemeanor of the first degree as directed in our original opinion.
OWEN and MAGER, JJ., and WHITE, JOS. S., Associate Judge, concur.