Opinion
No. 88-2134.
February 6, 1991.
Appeal from the Circuit Court for Broward County; Patti Englander Henning, Judge.
Richard L. Jorandby, Public Defender, and March K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was convicted of and sentenced for purchase of cocaine within 1000 feet of a school, and possession of that same cocaine.
We reject appellant's contention that the statute under which he was convicted is unconstitutional. Burch v. State, 558 So.2d 1 (Fla. 1990).
However, the parties agree that it was error to convict appellant of both purchase and possession where both convictions arose out of the same transaction and involved the same cocaine rock. This case is governed by Carawan v. State, 515 So.2d 161 (Fla. 1987). Appellant committed the offense in March of 1988. This is subsequent to Carawan, but before the effective date of the amendment to section 775.021(4), Florida Statutes (Supp. 1988), which superceded the result in Carawan. We therefore reverse the conviction of possession.
As a practical matter, this does not affect appellant's sentence, because the court sentenced appellant to serve his time for the two convictions concurrently.
We therefore reverse the conviction for possession of cocaine and remand with instructions to vacate this aspect of the judgment and sentence. In all other respects we affirm.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HERSEY, C.J., DOWNEY, J., and FRANK, RICHARD H., Associate Judge, concur.