Opinion
No. 77-1160.
August 2, 1978.
Appeal from the Circuit Court, St. Lucie County, Wallace Sample, J.
Richard L. Jorandby, Public Defender, and Frank B. Kessler and Joseph R. Atterbury, Asst. Public Defenders, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant was convicted and sentenced to a ten-year term of imprisonment for delivery of heroin and to a five-year term of imprisonment for possession of heroin, the sentences on each count to run concurrently.
On appeal we conclude that only one point raised by appellant has merit. The five-year sentence on the possession of heroin count must be reversed because it arises from the same transaction or occurrence as the count charging delivery of heroin. As the defendant was convicted of two facets or phases of the same transaction, he could only be sentenced for the higher of such offenses, that of delivery of heroin. Harris v. State, 358 So.2d 858 (Fla. 4th DCA, opinion filed May 16, 1978); Wright v. State, 348 So.2d 633 (Fla. 3d DCA 1977); Jones v. State, 265 So.2d 514 (Fla. 4th DCA 1972).
Accordingly, since no other reversible error has been demonstrated, the judgments as to the two counts are affirmed, but the sentence for possession of a controlled substance is vacated and set aside.
CROSS, DAUKSCH and LETTS, JJ., concur.