Opinion
No. 88-867.
October 6, 1989. Rehearing Denied November 15, 1989.
An Appeal from the Circuit Court for Suwannee County; John W. Peach, Judge.
Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
Williams appeals from judgment and sentence following his conviction of the sale of cocaine and possession of cocaine with intent to sell, contending that punishment for both crimes, arising out of a single transaction involving the same controlled substance, violated double jeopardy principles. Although arguments made by appellant in support of his position were recently rejected by this court in Wheeler v. State, 549 So.2d 687 (Fla. 1st DCA 1989), the rationale expressed in that opinion and the result reached nevertheless require reversal and resentencing herein. See also, Jones v. State, 551 So.2d 1221 (Fla. 1st DCA 1989). Further, the state's argument that section 775.021(4) should be applied retroactively so as to govern this case was rejected by the Florida Supreme Court in State v. Smith, 547 So.2d 613 (Fla. 1989).
Accordingly, we REVERSE and REMAND with instructions to vacate one or the other of Williams' convictions and for resentencing.
SMITH, NIMMONS and MINER, JJ., concur.