Opinion
No. 81-995.
June 4, 1982. Rehearing Denied July 12, 1982.
Appeal from Circuit Court, Pinellas County; Thomas E. Penick, Jr., Judge.
James W. Denhardt of Denhardt Andringa, St. Petersburg, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
Following the denial of motions to dismiss and motions to suppress, appellant/Schneider pled nolo contendere to a two-count information, charging him with possession (I) and sale for consideration (II) of methaqualone. § 893.13, Fla. Stat. (1981). Schneider was given a net total of two years' incarceration under each count, to run concurrently. Schneider has specifically preserved for appellate review the denial of these motions.
We find no error in the denial of his motion to dismiss and motion to suppress as it relates to Count I, possession of methaqualone, and accordingly AFFIRM the judgment and sentence. However, pursuant to a stipulation by the state, we do find error under the adjudication of Count II, as there is no evidence to support the contention that a sale actually took place.
Accordingly, pursuant to the stipulation and State v. Stewart, 374 So.2d 1381 (Fla. 1979), we REVERSE the conviction under Count II and REMAND to the lower court so that this sentence may be VACATED.
RYDER and DANAHY, JJ., concur.