465 So. 2d 613 | Fla. Dist. Ct. App. | 1985
We affirm the defendant’s conviction for attempted trafficking in cannabis and reverse his conviction for possession with intent to sell the very same cannabis. See Bell v. State, 437 So.2d 1057 (Fla.1983); Muwwakil v. State, 435 So.2d 304 (Fla. 3d DCA 1983), rev. denied, 444 So.2d 417 (Fla.1984). Our reversal of the possession with intent to sell charge thus eliminates the “additional offense at conviction,” see Fla.R.Crim.P. 3.701 d.4, and the concomitant 27
Because we remand for sentencing, we need not decide the further point posed by the appellant — namely, whether he, as a person whose crime occurred before October 1, 1983, and who is therefore given the right to elect to be sentenced under the guidelines, must on the record affirmatively waive his right to parole eligibility before his election of guideline sentencing will be deemed free and voluntary. While there is authority that such an affirmative waiver is unnecessary, see, e.g., Harris v. State, 465 So.2d 545 (Fla. 1st DCA 1985); Gage v. State, 461 So.2d 202 (Fla. 1st DCA 1984); Cochran v. State, 460 So.2d 542 (Fla. 1st DCA 1984); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), nonetheless, the question has been certified to the Florida Supreme Court as one of great public importance, and until the question is finally resolved, the trial court would be well advised to obtain the defendant’s waiver of his right to parole eligibility preceding any resentencing under the guidelines.
Affirmed in part; reversed in part; remanded for resentencing.