Public-domain · open source
OpenJurist

646 So. 2d 783

R.W. v. State

District Court of Appeal of Florida

Decided November 30, 1994

District Court of Appeal of Florida · decided 1994-11-30

Cited by 2 later decisions — most recently May 1995

2 state decisions

Key passage — most relied on by later courts

“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.”

quoted by 1 later decision, including 655 So. 2d 1179 - Harris v. State

Relies on 629 So. 2d 841 - Brown v. State · Paige v. State · 620 So. 2d 1033 - Stamps v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1994-11-30

View the full empirical analysis of this case →

DANAHY, Judge.

¶1The appellant was charged with violating section 893.13(l)(i), Fla.Stat. (1991), possession of cannabis with intent to sell, purchase, manufacture or deliver within 200 feet of a public housing facility. The incident took place on March 5, 1992. The appellant was adjudicated guilty and timely appeals, arguing that the case against him no longer is viable because the Florida Supreme Court has declared unconstitutional that part of the statute under which the appellant was adjudicated guilty. See Brown v. State, 629 So.2d 841 (Fla.1994).

¶2The appellant is correct and we must vacate his adjudication. However, we must also consider whether section 924.34, Florida Statutes (1991), requires that we direct the trial court to enter judgment for a lesser included offense. In that regard, we are persuaded by the reasoning of our sister court in Paige v. State, 641 So.2d 179 (Fla. 5th DCA 1994). Faced with exactly the same situation as we have in this case, the Fifth District concluded that possession with intent to sell under section 893.13(l)(a)l, Florida Statutes (1991) (now section 893.13(l)(b)), is a necessarily included lesser offense of possession with intent to sell within 200 feet of a public housing facility. See also Stamps v. State, 620 So.2d 1033 (Fla. 2d DCA 1993) (purchase of cocaine is a necessarily included lesser offense of the offense of purchasing cocaine within 1,000 feet of a school).

¶3Accordingly, we vacate the appellant’s adjudication and remand with directions that the appellant be adjudicated guilty of possession of cannabis with intent to sell, purchase, manufacture or deliver under section 893.13(l)(b), Florida Statutes (1991).

¶4Reversed and remanded with directions to enter a new adjudication of guilty.

RYDER, A.C.J., and ALTENBERND, J., concur.
/646/so2d/783 · .json · Public domain