358 SO2D 858 - Harris v. State

DAUKSCH, Judge.

¶1Appellant was convicted of possession of heroin and delivery of heroin. Both crimes occurred during a single transaction in which the appellant delivered heroin to an undercover agent. Appellant was adjudicated guilty of these charges and sentenced to five years on each count to be served concurrently.

¶2This sentence was error because the appellant could only be sentenced for the higher of the two crimes. Story v. State, 355 So.2d 1213 (Fla. 4 DCA 1978).

¶3 *859The appellee has referred us to Section 775.021(4), Florida Statutes (1976)1 but we have determined that statute is inapplicable here because the appellant committed the crimes before the effective date of the statute. State v. Munford, 357 So.2d 706 (Fla. 1978).

¶4The convictions and the sentence for the delivery are affirmed but the sentence for the possession is set aside.

ANSTEAD and MOORE, JJ., concur.

¶5. § 775.021(4), Fla.Stat.(1976): “Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.”