463 So. 2d 343 | Fla. Dist. Ct. App. | 1985
S.N. appeals from an order of adjudication and an order of commitment to the Department of Health and Rehabilitative
The state argues that it proved an attempted delivery, and therefore, a delivery. Pursuant to Milazzo v. State, 377 So.2d 1161 (Fla.1979), proof of attempted delivery constitutes delivery under section 893.02(4), Florida Statutes (1983)
In this case the record established that a sales transaction was aborted before there was even an agreement on price, and there was no attempt to deliver. In Milazzo, the supreme court stated that an attempted sale does not constitute a sale. Obviously, proof of an aborted sale does not equate to an attempted delivery.
The trial court founded its adjudication under Count II as “possession with intent to sell.” Although the evidence presented would have sustained an adjudication on this count, this was not the crime with which S.N. was charged. Therefore, this adjudication cannot be sustained. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Ray v. State, 403 So.2d 956 (Fla.1981); Perkins v. Mayo, 92 So.2d 641 (Fla.1957).
Accordingly, the order appealed is reversed as to Count II and this proceeding is remanded to the lower court for the purpose of considering whether commitment is proper on Count I alone, since the more serious offense charged in Count II has been eliminated.
REVERSED IN PART; REMANDED IN PART.
. § 893.13(1), Fla.Stat. (1983).
. § 893.13(l)(a)(2), Fla.Stat. (1983).
. Section 893.13(l)(a), Florida Statutes (1983) provides:
Except as authorized by this chapter and Chapter 499, It is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.
. Section 893.02(4), Florida Statutes (1983) provides:
"Deliver" or “delivery” means the actual, constructive, cr attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.