               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT



OMAR RUSHAWN BUGGS, a/k/a OMARO )
RUSHAWN BUGGS,                  )
                                )
          Appellant,            )
                                )
v.                              )                    Case No. 2D17-4040
                                )
STATE OF FLORIDA,               )
                                )
          Appellee.             )
                                )

Opinion filed April 3, 2019.

Appeal from the Circuit Court for
Hillsborough County; Laura E. Ward,
Judge.

Howard L. Dimmig, II, Public Defender,
and Megan Olson, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and C. Suzanne Bechard,
Assistant Attorney General, Tampa, for
Appellee.


BLACK, Judge.

              Omar Buggs challenges the order revoking his probation and the resulting

sentences. We affirm the revocation order without comment, but because Buggs's
sentence for possession of cocaine is illegal, we reverse and remand for resentencing

on that count.

              In 2015 Buggs pleaded guilty to delivery of cocaine within 1000 feet of a

public housing facility, a first-degree felony punishable by up to thirty years in prison,

see §§ 775.082(3)(b)(1), 893.13(1)(f)(1), Florida Statutes (2014), and to possession of

cocaine, a third-degree felony punishable by up to five years in prison, see §§

775.082(3)(e), 893.13(6)(a). Buggs was sentenced to concurrent terms of two years'

community control followed by three years' probation. In June 2017, the State filed a

second amended affidavit alleging that Buggs had violated several conditions of his

probation. At the conclusion of the evidentiary hearing, the court found that Buggs

willfully and substantially violated his probation and revoked his probation. A Criminal

Punishment Code (CPC) scoresheet was prepared for sentencing.1 Buggs's total

sentence points were 79.4, and the lowest permissible sentence was 38.55 months in

prison. Buggs was sentenced to fifty-eight months in prison followed by one year of

probation on both counts. Buggs then filed this appeal.

              Buggs argues, and the State agrees, that the court erred in sentencing

him to fifty-eight months in prison followed by one year of probation for possession of

cocaine as this sentence exceeds the statutory maximum for the offense and was not

required under the CPC. During the pendency of this appeal, Buggs filed a motion to




              1Delivery
                      of cocaine was the primary offense, and possession of cocaine
was scored as an additional offense.


                                            -2-
correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

The trial court denied the motion with respect to this issue,2 ruling as follows:

              It has long been held that where an information contains
              more than one count but each is a facet or phase of the
              same transaction, only one sentence may be imposed, and
              the sentence which should be imposed is for [the] highest
              offense charged. See Williams v. State, 69 So. 2d 766 (Fla.
              1953); see also Thornton v. State, 306 So. 2d 205, 206 (Fla.
              1st DCA 1975) (holding that possession of dangerous drugs
              charge was but another facet of delivery charge and thus
              sentence could be imposed only on delivery charge as the
              highest offense); Wilson v. State, 293 So. 2d 81, 82 (Fla. 3d
              [DCA] 1974) (holding there was no error in adjudication that
              defendant was guilty under both counts of information which
              charged the sale and possession of heroin, but only one
              sentence could be imposed and sentence should be for the
              highest offense charged). Because [Buggs] was sentenced
              to fifty-eight (58) months' prison followed by one (1) year
              probation, his sentence does not exceed the statutory
              maximum as allowed by law and conforms to Florida's
              established law regarding sentencing where multiple counts
              in a single information are facets of the same transaction.

However, section 775.021(4), which was amended in 1988 by adding subsection (4)(b),

see ch. 88-131, § 7, Laws of Fla., requires separate convictions and sentences for

offenses which were committed during the course of the same transaction:

              (4)(a) Whoever, in the course of one criminal transaction or
              episode, commits an act or acts which constitute one or
              more separate criminal offenses, upon conviction and
              adjudication of guilt, shall be sentenced separately for each
              criminal offense; and the sentencing judge may order the
              sentences to be served concurrently or consecutively. For
              the purposes of this subsection, offenses are separate if
              each offense requires proof of an element that the other
              does not, without regard to the accusatory pleading or the
              proof adduced at trial.




              2Buggs raised an additional issue in his rule 3.800(b)(2) motion, and the
court granted the motion with respect to that issue.


                                            -3-
             (b) The intent of the Legislature is to convict and sentence
             for each criminal offense committed in the course of one
             criminal episode or transaction and not to allow the principle
             of lenity as set forth in subsection (1) to determine legislative
             intent. Exceptions to this rule of construction are:

             1. Offenses which require identical elements of proof.

             2. Offenses which are degrees of the same offense as
             provided by statute.

             3. Offenses which are lesser offenses the statutory elements
             of which are subsumed by the greater offense.

§ 775.021(4)(a), (b) (emphasis added).

             In State v. McCloud, 577 So. 2d 939, 940 (Fla. 1991), the supreme court

held that the amended statute did not prohibit separate convictions and sentences for

the sale of a controlled substance and possession of that same controlled substance.

Thereafter, in Davis v. State, 581 So. 2d 893, 894 (Fla. 1991), the supreme court held

that the same analysis set forth in McCloud applied to Davis's convictions and

sentences for the delivery and possession of a controlled substance.

             The cases relied upon by the trial court predate the 1988 amendment to

section 775.021(4) and have no bearing on this case.3 Pursuant to section 775.021(4)

and McCloud and its progeny, Buggs was properly sentenced separately for the



             3And   even had the trial court been correct in concluding that "only one
sentence may be imposed" in this case, the appropriate course of action under the line
of cases cited by the trial court would have been to vacate the conviction and sentence
for possession of cocaine and only sentence Buggs for delivery of cocaine as the
highest offense charged. See Williams v. State, 69 So. 2d 766, 767 (Fla. 1953);
Thornton v. State, 306 So. 2d 205, 206 (Fla. 1st DCA 1975), reversed in part on other
grounds, 327 So. 2d 227 (Fla. 1976); Wilson v. State, 293 So. 2d 81, 82 (Fla. 3d DCA
1974); see also Caivano v. State, 276 So. 2d 245, 245 (Fla. 2d DCA 1973) (holding that
though Caivano was convicted of both possession of cocaine and sale of cocaine, he
should have only received one sentence for the highest offense charged since the
offenses were facets of the same transaction).


                                           -4-
possession of cocaine conviction. Moreover, because Buggs's sentence for possession

of cocaine—which includes a prison term and probation—exceeds the statutory

maximum for a third-degree felony, it is illegal. See § 775.082(3)(e); Kelly v. State, 816

So. 2d 1221, 1222 (Fla. 2d DCA 2002). We therefore reverse Buggs's sentence for

possession of cocaine and remand for resentencing.

              Affirmed in part, reversed in part, and remanded for resentencing.

KELLY and SLEET, JJ., Concur.




                                           -5-
