Woods v. State
509 So. 2d 1370
Fla. Dist. Ct. App.
1987
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ORFINGER, Judge.

Defendant appeals his conviction and sentence. We affirm the conviction, but vacate the sentence because the departure from the presumptive guidelines sentence was invalid.

Defendant was charged with trafficking in cocaine1 and unlawful possession of cannabis.2 In what was obviously an exercise of its pardon power, the jury found defendant guilty of the lesser offense of possession of cocaine,3 and guilty as charged of possession of cannabis. In departing from the guidelines sentence, the trial court recognized that the jury’s verdict implied a finding that defendant possessed less than 28 grams of cocaine but based the departure on the basis that the uncontroverted evidence established that the defendant possessed 95 grams of cocaine, thus indicating that the cocaine was for more than personal consumption. Defendant argues, and we agree, that it was error to depart based upon consideration of an offense for which a conviction had not been obtained (trafficking in cocaine). Fla.R.Crim.P. 3.701(d)ll. For whatever reason, the jury acquitted defendant of this charge.

The other issues raised by defendant have been considered and found without merit. Thus, defendant’s conviction is affirmed, his sentence is vacated and the cause is remanded for resentencing.

Conviction AFFIRMED; REMANDED for resentencing.

DAUKSCH and COBB, JJ., concur.

. § 893.135(l)(b)l, Fla.Stat. (1985). For conviction of the offense of "trafficking in cocaine,” the amount of the substance must be 28 grams or more.

. § 893.13(l)(e), Fla.Stat. (1985).

. § 893.13(l)(a), Fla.Stat. (1985).