Opinion
No. 87-1323.
July 22, 1988.
Appeal from the Circuit Court for Polk County; Charles B. Curry, Judge.
James Marion Moorman, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
Key appeals from her judgment and sentences for possession of cocaine with intent to sell and sale of cocaine predicated upon a single act. Key challenges the convictions and sentences primarily on double jeopardy grounds, asserting that they have resulted in her receiving multiple punishments for the same offense. The precise offenses underlying Key's convictions were recently reviewed by this court under a similar double jeopardy challenge in Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988). In deciding this appeal, we find Gordon to be controlling. In Gordon, we held that the double jeopardy clauses of the federal and Florida constitutions prohibit punishing a defendant for the offenses of possession with intent to sell and sale of cocaine, both of which involved the same item of cocaine. Id. In accordance with Gordon, we remand the case to the trial court with instructions to vacate one of the two convictions and for a recalculation of Key's recommended guidelines sentence absent the vacated conviction.
The factual circumstances surrounding this case involved an exchange, whereby Key transferred two pieces of rock cocaine to undercover police officers and in return received fifty dollars.
We further find error in the trial court's imposition of court costs at the sentencing hearing without providing any statutory authority for the costs. Aultman v. State, 515 So.2d 391 (Fla. 2d DCA 1987). Such statutory support is also not included in the written judgment. Under these circumstances, the indigent defendant was not provided the required notice under Jenkins v. State, 444 So.2d 947 (Fla. 1984), and opportunity to be heard and object. Aultman.
Lastly, as conceded by the state, the sentencing judge orally imposed a lien for attorney's fees in the amount of $350 while the judgment reflects a $355 lien for attorney's fees. The judgment should, therefore, be corrected to conform with the trial court's pronouncement.
Accordingly, we remand the case to the trial court for proceedings in conformity with this opinion.
Affirmed in part; vacated in part; remanded.
CAMPBELL, A.C.J., and FRANK, J., concur.