McClam v. State , 288 So. 2d 285 ( 1974 )

288 So. 2d 285 (1974)

John J. McCLAM, Appellant,
v.
STATE of Florida, Appellee.

No. 73-703.

District Court of Appeal of Florida, Fourth District.

January 18, 1974.

Richard L. Jorandby, Public Defender, and Norman J. Kapner, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

Defendant was tried by jury, convicted and sentenced to two and one-half years imprisonment for possession of marijuana, contrary to the provisions of Section 404.15(1), F.S. 1971, F.S.A. This offense is a felony. He now appeals upon the premise that the trial court erred in refusing to give the defendant's requested instruction of the lesser included offense of attempt to possess marijuana, such attempt being a misdemeanor.

We reverse upon authority of Ward v. State, Fla.App. 1973, 287 So. 2d 138, Opinion filed December 21, 1973. We remand with respectful instructions that, upon the State's election, the defendant be sentenced for a misdemeanor under the provisions of Section 776.04(3), F.S. 1971, F.S.A., or in the alternative be granted a new trial.

Reversed and remanded.

DOWNEY, J., and COWART, JOE A, Jr., Associate Judge, concur.