Pruitt v. State, 79-1536

• Decision Date: 24 December 1980
• Docket Number: No. 79-1536,79-1536
• Citation: 403 So.2d 988
• Parties: James B. PRUITT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 988

403 So.2d 988

James B. PRUITT, Appellant, v. STATE of Florida, Appellee.

No. 79-1536.

District Court of Appeal of Florida, Second District.

Dec. 24, 1980.

B. Robert Ohle, St. Petersburg, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Judge.

James B. Pruitt appeals his conviction for attempted possession of more than 100 pounds of marijuana. We find no merit in the points raised on appeal and affirm the conviction. However, we remand for resentencing.

Appellant was convicted of attempted possession of more than 100 pounds of marijuana. This court has recently held possession of more than 100 pounds of marijuana to be a third-degree felony. Carvajal v. State, Case No. 80-406, 392 So.2d 287 (Fla.2d DCA 1980); Reinersman v. State, 382 So.2d 325 (Fla.2d DCA 1980). Section 777.04(4)(d), Florida Statutes (1979), then requires that attempted possession be a first-degree misdemeanor. The maximum punishment for a first-degree misdemeanor is one year in prison and a $1,000.00 fine. Sections 775.082(4)(a), 775.083(1)(d), Florida Statutes (1979). The court sentenced appellant to five years in prison and a $5,000.00 fine.

We vacate the illegal sentence imposed and remand for resentencing within the limits set out above.

BOARDMAN, Acting C. J., and DANAHY, J., concur.