Opinion
No. 1D04-0035.
December 3, 2004.
Appeal from the Circuit Court, Baker County, Joseph M. Williams, J.
Patricia A. Worrell, Tallahassee, for Appellant.
Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
This is a timely appeal from the appellant's convictions and sentences for possession of cocaine with intent to sell and sale of cocaine. At the charge conference regarding the charge of possession of cocaine with intent to sell, defense counsel requested an instruction on the lesser included offense of simple possession of cocaine. The trial court refused to give the instruction and the issue was preserved for appeal. The appellant was entitled to the instruction because the information contained the elements of and the evidence adduced at trial could have supported a conviction of the lesser included offense of possession of cocaine. Amado v. State, 585 So.2d 282 (Fla. 1991); Gainer v. State, 633 So.2d 480, 481 (Fla. 1st DCA 1994). The trial court's failure to give this instruction is reversible error. We therefore reverse the appellant's conviction and sentence for possession of cocaine with the intent to sell and remand for a new trial. We affirm the appellant's conviction and sentence for sale of cocaine.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
ERVIN, DAVIS and HAWKES, JJ., concur.