Opinion
No. 86-2725.
July 20, 1988.
Appeal from the Circuit Court, Manatee County, Durand J. Adams, J.
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Alan L. Overton, Asst. Atty. Gen., Tampa, for appellee.
Defendant appeals from his convictions for trafficking in cocaine, delivery of marijuana, and possession of marijuana.
He contends that his convictions for possession and delivery of marijuana constituted a double jeopardy violation. We agree. See Gordon v. State, 528 So.2d 910 (Fla.2d DCA 1988). This contention was properly raised on appeal notwithstanding that it was not raised below. See Williams v. State, 516 So.2d 975 (Fla. 5th DCA 1987) (en banc).
He also contends that the trial court erred in failing to instruct the jury on possession as a lesser included offense of trafficking in cocaine. However, the record does not support that contention. See Munroe v. State, 514 So.2d 397 (Fla. 1st DCA 1987), rev. den., 519 So.2d 987 (1988); Bell v. State, 208 So.2d 474, 479 (Fla. 1st DCA 1968); Boyd v. State, 162 So.2d 271, 273-74 (Fla. 2d DCA 1964).
We find no merit in defendant's last contention.
Affirmed in part, reversed in part and remanded. Upon remand the trial court shall vacate one of defendant's convictions for delivery and possession of marijuana.
RYDER, A.C.J., and FRANK, J., concur.