Caivano v. State

276 So.2d 245 (1973) Robert CAIVANO, Appellant, v. STATE of Florida, Appellee. No. 72-505. District Court of Appeal of Florida, Second District. February 14, 1973. Rehearing Denied May 10, 1973. Kenneth R. Mikos, of Friedrich, Kersten & Blackwell, Fort Lauderdale, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., and Richard C. Booth, Asst. Attys. Gen., Tampa, for appellee. PIERCE, Judge (Ret.). Appellant Caivano was charged in a two-count information with (1) possession of cocaine and (2) sale of cocaine on April 20, 1971. He was convicted of both charges and sentences of three years for each conviction were imposed by the trial judge to be served concurrently. The cocaine he was charged with possessing was the cocaine he was charged with selling. Caivano was therefore charged and convicted of two facets or phases of the same transaction. Only one sentence should have been imposed, and that for the highest offense charged. Yost v. State, Fla.App. 1971, 243 So.2d 469; Martin v. State, Fla.App. 1971, 251 So.2d 283; Brown v. State, Fla.App. 1972, 264 So.2d 28; Jones v. State, Fla. App. 1972, 265 So.2d 514. We have examined the other points raised on appeal and find them to be without merit. *246 The judgment is affirmed, but the sentences are vacated and the cause is remanded with directions that appellant be presented to the trial court and properly sentenced in accordance herewith. Affirmed in part; reversed in part with directions. MANN, C.J., and LILES, J., concur.