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573 So. 2d 177

Pickett v. State

District Court of Appeal of Florida

Decided January 18, 1991

District Court of Appeal of Florida · decided 1991-01-18

Relies on 436 So. 2d 30 - Achin v. State · 438 So. 2d 825 - Wainwright v. Potts · 454 So. 2d 769 - Polite v. State

Decided 1991-01-18

PER CURIAM.

¶1We affirm appellant’s convictions for delivery of cocaine and escape.

¶2Appellant’s conviction for possession of cocaine with intent to deliver must be vacated. Mincey v. State, 563 So.2d 811 (Fla. 2d DCA 1990).

¶3Appellant was also convicted, initially, of “attempted resisting arrest with violence” as a lesser included offense of resisting arrest. Defense counsel apparently requested such an instruction at appellant’s jury trial. As recognized by both parties to this appeal, this is a nonexistent crime. Plummer v. State, 454 So.2d 769 (Fla. 1st DCA 1984). Upon discovering the error, the trial court correctly scheduled a retrial of the principal charge. Jordan v. State, 438 So.2d 825 (Fla.1983); Achin v. State, 436 So.2d 30 (Fla.1982). Appellant, after reviewing his options, then entered a plea. This decision cured any error stemming from the jury verdict, and we affirm the conviction and sentence imposed after appellant’s plea. However, the written judgment and sentence should be corrected to reflect that the conviction is for resisting arrest with violence, not the nonexistent crime of attempt.

¶4Affirmed in part, reversed in part, and remanded with instructions.

DANAHY, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.
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