334 So. 2d 160 | Fla. Dist. Ct. App. | 1976
Appellant appeals a judgment and sentence for sale and possession of heroin. In instructing the jury, the trial judge erroneously stated that the maximum possible sentences for possession and for sale of heroin were five years each, but since it was a single transaction the maximum penalty imposable would be a single five years. This was a wrong charge, of course, since the maximum sentence for the sale of heroin is fifteen years.
Appellant was found guilty as charged. The court imposed a single ten year sentence. Appellant now insists that he is entitled to a new trial. We disagree.
Appellant makes no valid contention that the evidence is insufficient to support the verdicts of guilty and the judgments entered thereon. The gravamen of his complaint must necessarily be that had the jury known of the severity of the offenses with
In view whereof the judgments are affirmed but the cause is remanded with directions that a single sentence of five years be imposed for the higher offense of sale of heroin. We ordain, too, that it will not be necessary for appellant to be present at resentencing.
. Sections 893.13(1) (a) (1) and 775.082, F.S. 1975.
. See Burt v. State (Fla.App. 1st, 1976), 330 So.2d 472; Stern v. State (Fla.App. 3rd, 1974), 296 So.2d 549.