WATERS v. STATE (1997)

Lavertis Bernard Waters (Waters) was convicted and sentenced for sale of cocaine and possession of drug paraphernalia.   He raises three issues in this direct appeal, only one of which merits discussion. We affirm the judgment and sentence for sale of cocaine and reverse the conviction for possession of drug paraphernalia.

Waters was arrested for the sale of cocaine approximately one month after the offense occurred.   He had in his mouth, at the time of his arrest, a small piece of metal which was identified by an expert witness as a device commonly used to smoke controlled substances.   However, no evidence was introduced to show the presence of drug residue on the device, nor were any drugs found on Waters at the time of his arrest.   Waters argues that there was insufficient evidence of intent to use the device to ingest a controlled substance.   We agree that our decision in Nixon v. State, 680 So.2d 506 (Fla. lst DCA 1996), requires that we reverse on this count.

Accordingly, the judgment and sentence for sale of cocaine is affirmed;  we remand the misdemeanor offense of possession of drug paraphernalia to the trial court with instructions to vacate the judgment and sentence on this count.

AFFIRMED in part and REVERSED in part.

PER CURIAM.

MINER, LAWRENCE and PADOVANO, JJ., concur.