WASHINGTON v. STATE (1999)

District Court of Appeal of Florida,First District.

Shawn A. WASHINGTON, Appellant, v. STATE of Florida, Appellee.

No. 97-3915.

Decided: October 29, 1999

Nancy A. Daniels, Public Defender and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General and Veronica S. McCrackin, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

We conclude that the evidence was sufficient to support the defendant's conviction for trafficking in excess of twenty-eight grams of cocaine. The weight of the cocaine was a question for the jury. As the state concedes, however, the defendant cannot be convicted of both trafficking in cocaine and possession of cocaine with intent to sell if the two offenses arose out of the same criminal episode. See Johnson v. State, 712 So.2d 380 (Fla.1998). Accordingly, we remand the case to the trial court with instructions to vacate the defendant's conviction for possession of cocaine with intent to sell, and to resentence the defendant on the trafficking conviction.

PER CURIAM.

ERVIN, LAWRENCE and PADOVANO, JJ., CONCUR.

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