Opinion
No. 88-1137.
October 11, 1989.
Appeal from the Circuit Court for St. Lucie County; L.B. Vocelle, Judge.
Richard L. Jorandby, Public Defender and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Ivy R. Ginsberg, Asst. Atty. Gen., Miami, for appellee.
The state concedes that appellant's convictions for both sale and delivery of cocaine and trafficking in cocaine violated double jeopardy prohibitions. In light of Spadaro v. State, 539 So.2d 1169 (Fla.2d DCA), jurisdiction accepted, 547 So.2d 1211 (Fla. 1989) and Garrison v. State, 530 So.2d 365 (Fla.5th DCA 1988) (for double jeopardy purposes, sale and delivery is a lesser included offense of trafficking), we vacate appellant's sale and delivery of cocaine conviction. But we affirm appellant's trafficking in cocaine conviction on the authority of Asmer v. State, 416 So.2d 485 (Fla.4th DCA 1982), and appellant's possession of cocaine conviction on the authority of Pelaez v. State, 541 So.2d 1211 (Fla.2d DCA 1988) review denied, 542 So.2d 1334 (Fla. 1989), and remand for resentencing after proceedings consistent herewith.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION.
DELL, GUNTHER and GARRETT, JJ., concur.