KENNETH SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Kenneth Smith was charged by Information with trafficking in cocaine (Count I) and possession of cocaine (Count III). He appeals his conviction of delivery of cocaine (as a lesser included offense of the Count I trafficking charge) and possession as charged (Count III).
Appellant Smith was a co-defendant of Carlos Di Paola in the trial court. We affirm the conviction and sentence on Count III, having determined that all points on appeal save one represent no error or harmless error. We reverse the conviction and sentence on Count I for the reasons expressed in our opinion in Di Paola v. State, 461 So. 2d 284 released simultaneously with our opinion in this case.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED FOR NEW TRIAL.
ANSTEAD, C.J., and HERSEY and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reginaldo Carvalho v. State, 513 So. 2d 1321 (Fla. 3d DCA 1987)…per se reversible error. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Daophin v. State, 511 So. 2d 1037 (Fla. 4th DCA 1987); Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986); DiPaola v. State, 461 So. 2d 284 (Fla. 4th DCA 1985); Smith v. State, 461 So. 2d 1024 (Fla. 4th DCA 1985). Contra Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986). Although a defendant may waive his procedural right to have the jury instructed on necessarily included offenses, Carvalho’s stipulation that he possessed over 400 grams…
Authorities Cited
- DiPAOLA v. State, 461 So. 2d 284 (Fla. 4th DCA 1985)