Alburyv.State

District Court of Appeal of Florida, Third DistrictSep 24, 1991
585 So. 2d 509 (Fla. Dist. Ct. App. 1991)

No. 90-2689.

September 24, 1991.

An Appeal from the Circuit Court for Monroe County; Richard J. Fowler, Judge.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark S. Dunn, Asst. Atty. Gen., for appellee.

Before BARKDULL, HUBBART and COPE, JJ.


John Albury appeals his conviction and sentence for possession of cocaine. In accordance with the State's confession of error, which is well taken, we reverse the conviction and sentence on that count.

Albury was convicted of possession of cocaine with intent to sell (count I) and possession of the same cocaine (count II). Albury contends, and the State concedes, that the offense of possession is subsumed within the greater offense of possession with intent to sell. Accordingly, the conviction and sentence for the lesser offense, count II, must be vacated. See § 775.021(4)(b)(3), Fla. Stat. (1989); Murray v. State, 464 So.2d 622, 623 (Fla. 2d DCA 1985); Rodriguez v. State, 395 So.2d 555, 556 (Fla. 2d DCA 1981). The conviction and sentence on count II are vacated.

As there is no challenge to the conviction and sentence on count I, they are affirmed.

Affirmed in part, reversed in part.