Opinion
No. 1D09-4497.
June 13, 2011.
Appeal from the Circuit Court for Santa Rosa County. Gary L. Bergosh, Judge.
Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges criminal convictions which were obtained in a joint trial with a codefendant. In this appeal, the appellant contends that there was insufficient evidence to support the convictions for trafficking in hydrocodone, and for possession of cocaine and drug paraphernalia. The appellant also contends that the use of a jury instruction with an "and/or" conjunction between his name and the codefendant's name was fundamental error. These same issues were addressed by this court in the codefendant's separate appeal in Nicholson v. State, 33 So.3d 107 (Fla. 1st DCA 2010), where the codefendant's trafficking conviction was reversed, and his possession of cocaine and paraphernalia convictions were affirmed. Nicholson is controlling authority as to these matters, and the appellant's conviction for trafficking is likewise reversed, while his convictions for possession of cocaine and paraphernalia are affirmed. In light of the reversal of the trafficking conviction, the appellant's sentences are vacated and the case is remanded for resentencing under a corrected scoresheet. See Vroom v. State, 48 So.3d 82 (Fla. 2d DCA 2010); Smith v. State, 687 So.2d 308 (Fla. 1st DCA 1997).
ROBERTS, CLARK, and WETHERELL, JJ., concur.