Opinion
No. 73-933.
June 18, 1975. Rehearing Denied July 15, 1975.
Appeal from the Circuit Court for Hillsborough County, Robert W. Rawlins, Jr.
Martin S. Saxon, Miami, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted and sentenced to five years in prison for the crime of delivery of barbiturates, and to three years for sale of a hypnotic drug, to wit: methaqualone, in violation of § 404.02 F.S., said sentences to run consecutively.
Section 404.02 F.S. (1972), which was in effect at the time of appallant's arrest on June 30, 1973, prohibited the unlawful delivery of any barbiturate or central nervous system stimulant, hallucinogenic drug or other controlled drugs. "Delivery" was defined in § 404.01(4) as including both selling and giving away. Methaqualone was encompassed in the definition of barbiturates which was defined in § 404.01(1) as including hypnotic and somnifacient drugs. [See § 893.03, Schedule III, effective July 1, 1973.] The charge of "delivery" of "barbiturates" included the charge of "sale" of "methaqualone," and therefore the two counts did not charge separate and distinct offenses, but the same offense. Accordingly, the judgment and sentence for the sale of methaqualone were improperly entered and are hereby reversed. The valid judgment and sentence for delivery of barbiturates are affirmed.
The other points raised on appeal by appellant have been considered and found to be without merit.
Affirmed in part; reversed in part.
McNULTY, C.J., and SCHEB, J., concur.