Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

SHAWN LAMONT BLACK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-1262

Opinion filed January 24, 2012.

An appeal from the Circuit Court for Escambia County. Linda L. Nobles, Judge.

Nancy A. Daniels, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant Appellant’s motion for rehearing, withdraw our previous per curiam affirmance, and substitute this opinion in its place.

Appellant contends in part that his convictions for drug offenses under chapter 893, Florida Statutes, should be set aside based upon Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11 (M.D. Fla. July 27, 2011). We recently rejected this argument in Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011). Accordingly, we AFFIRM.

BENTON, C.J., DAVIS and MARSTILLER, JJ., CONCUR.

Courtesy of David Edelstein

Bookmark It

Hide Sites

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

GEORGE WILLIAM CRAIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-2145

Opinion filed January 24, 2012.

An appeal from the Circuit Court for Clay County. John H. Skinner, Judge.

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant, and George William Crain, pro se, Appellant.

Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, C.J.

George William Crain appeals his conviction as a habitual traffic offender for driving “while his license was revoked.” He points out that he has never had a

Florida driver’s license (or any other, as far as the record reveals). We reverse his felony conviction, but remand for entry of judgment for driving without a license, a lesser included misdemeanor.

On supplemental briefing,1 Mr. Crain argues that, because he never had a Florida driver’s license, his conviction for violating section 322.34(5), Florida Statutes (2009), constituted fundamental error.2 See F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003) (holding that an “argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be” made in the trial court to preserve the point for appeal); Rodriguez v. State, 964 So. 2d 833, 836 n.1 (Fla. 2d DCA 2007) (“It is . . . fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime.”). “Conviction of a crime which did not take place is a fundamental

1After some confusion surrounding the filing of the record and two extensions of time for filing the initial brief, Mr. Crain’s original counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). But we requested supplemental briefing from the Office of Criminal Conflict and Civil Regional Counsel on the issue of whether appellant had been convicted of a crime not proscribed by section 322.34(5), Florida Statutes (2009), whether the jury instructions were erroneous as given, and whether the trial court erroneously instructed the jury in response to the jury’s questions. We note that Mr. Crain has by now already served his eighteen-month sentence.

2Even if conviction of a nonexistent crime were not fundamental error, use of the altered jury instructions over objection would require remand. See Brown v. State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009) (Where “‘an instruction is confusing or misleading, prejudicial error occurs where the jury might reasonably have been misled and the instruction caused them to arrive at a conclusion that it otherwise would not have reached.’” (quoting Tinker v. State, 784 So. 2d 1198, 1200 (Fla. 2d DCA 2001))).

error, which the appellate court should correct even when no timely objection or motion for acquittal was made below.” Harris v. State, 647 So. 2d 206, 208 (Fla. 1st DCA 1994).

The information charged Mr. Crain with driving “a motor vehicle upon the highways of this State, while his driver’s license or driving privilege was cancelled, suspended or revoked, pursuant to Florida Statutes, Section 322.264 (Habitual Offender), contrary to the provisions of Section 322.34(5), Florida Statutes,” even though section 322.34(5) says nothing about any “driving privilege” distinct from a driver’s license. In the same vein, Elizabeth Damguard, a Florida Department of Highway Safety and Motor Vehicles (DHSMV) employee, testified at trial that even a person without a driver’s license could have his “driving privilege” suspended,3 and that DHSMV takes the view that it can revoke or suspend this disembodied privilege regardless of whether the person has ever had a valid driver’s license, because DHSMV is “revoking and suspending the privilege to have a valid license.”

Over defense objection, the trial court instructed the jury that the state had to prove two elements: (1) that Mr. Crain drove a motor vehicle upon a highway in

3 The state moved a certified copy of Mr. Crain’s driving record into evidence, which showed that his “driver’s license” had been revoked as a habitual traffic offender four times, most recently on March 30, 2004, even though the record was clear that he had never actually had or been issued a driver’s license. The state does not argue otherwise.

this state, and (2) that, at the time, his “driver’s license or driving privilege was revoked as a habitual traffic offender.” (Emphasis supplied.) In addition to altering the statutory language by inserting “or driving privilege,” the trial court also added its own, perhaps contradictory, definition of a distinct “driving privilege,” viz., “the privilege to drive if licensed by the State of Florida with a valid driver’s license.”

Mr. Crain was convicted of violating section 322.34(5), which makes it a third-degree felony for a person to drive while his driver’s license is revoked pursuant to section 322.264, Florida Statutes (2009). The Legislature clearly defined “driver’s license” as a certificate authorizing an individual to drive, see § 322.01(17), Fla. Stat. (2009), and “revocation” is defined as the termination of a licensee’s privilege to drive. See § 322.01(36), Fla. Stat. (2009). Chapter 322 does not define “driving privilege.”

While deliberating, the jury posed two questions that go to the heart of the prosecution’s misreading of the statute: “Is having the privilege to drive contingent on having ever had a license?” and “Can you have the privilege taken away if you’ve never had a license?” The trial judge answered: “The only way I can respond to this is to refer you back to your jury instructions and the arguments that you heard from the attorneys and ask you to look again at the evidence that you may have before you in the form of the CDR [certified driving record] and

continue to work on your verdict.” The trial judge’s answer did not rely on the statutory language, or apply “the rule that criminal statutes must be strictly construed, [in order that] nothing not clearly . . . described in a statute’s very words, as well as manifestly intended by the legislature, shall be considered included within its terms.” Ferguson v. State, 377 So. 2d 709, 711 (Fla. 1979) (citing Earnest v. State, 851 So. 2d 957 (Fla. 1977)).

Section 322.34(5), the provision under which appellant was convicted of a third-degree felony, does not outlaw driving by drivers never issued a license to drive.4 Another provision, section 322.03(1), Florida Statutes (2009), proscribes driving without a valid driver’s license: “Except as otherwise authorized in this chapter, a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license issued under this chapter.” Driving without a valid license is a second-degree misdemeanor. See § 322.39, Fla. Stat. (2009).

“Driver’s license” is defined as “a certificate that, subject to all other requirements of law, authorizes an individual to drive a motor vehicle and denotes

4 Mr. Crain concedes that one can obtain the privilege to drive in Florida via a statutory exemption pursuant to section 322.031, Florida Statutes (2009) or section 322.04, Florida Statutes (2009), but argues that, because Mr. Crain has neither a driver’s license nor falls within one of the statutory exemptions, he does not have a privilege to drive. The state does not contend that Mr. Crain has any sort of statutory privilege to drive; instead, it argues that all individuals have a due process right in the privilege to obtain a driver’s license.

an operator’s license as defined in 49 U.S.C. s. 30301.” § 322.01(17), Fla. Stat. (2009). Mr. Crain was convicted of violating section 322.34(5), Florida Statutes (2009) which provides:

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis supplied.) Section 322.264, Florida Statutes (2009), defines a “habitual traffic offender” as:

[A]ny person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period:

(1) Three or more convictions of any one or more of the following offenses arising out of separate acts:

(d) Driving a motor vehicle while his or her license is suspended or revoked.

(Emphasis supplied.) Furthermore, DHSMV “shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person shall not be eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271.” § 322.27(5), Fla. Stat. (2009) (emphasis supplied).

“One of the most fundamental principles of Florida law is that penal statutes

must be strictly construed according to their letter.” Perkins v. State, 576 So. 2d

1310, 1312 (Fla. 1991). “Revocation” is “the termination of a licensee’s privilege

to drive.” § 322.01(36), Fla. Stat. (2009) (emphasis supplied). The Second

District in Carroll v. State, 761 So. 2d 417, 418 (Fla. 2d DCA 2000), adopted the

state’s argument that “even though appellant did not have a driver’s license, he did

have a ‘driving privilege’ that had been revoked due to his status as a habitual

traffic offender, and the revocation of this driving privilege was the equivalent of

revocation of a driver’s license for purposes of section 322.264, Florida Statutes

(1997).” But this reads language into the statute that the Legislature did not enact.5

Nor can it be said that the Legislature “manifestly intended” section

322.34(5) to apply to drivers who have never been issued a license, given the

contrasting language in the very next subsection: Section 322.34(6), Florida

Statutes (2009), applies even to drivers who have never been issued a license

5 The Second District reasoned that, since the Legislature used the term “driving privilege” in section 322.271(1)(b) when referring to section 322.27(5), which uses the term “driver’s license,” the Legislature intended the terms “to mean the same thing and to apply equally to either situation.” Carroll v. State, 761 So. 2d 417, 419 (Fla. 2d DCA 2000). On that basis, the court found that Carroll’s “lack of a driver’s license did not relieve him from conviction as a habitual traffic offender whose driver’s license (driving privilege) had been revoked or suspended.” Id. See State v. Bletcher, 763 So. 2d 1277, 1278 (Fla. 5th DCA 2000) (reversing trial court’s dismissal of charge under section 322.34(5), citing Carroll); see also Newton v. State, 898 So. 2d 1133 (Fla. 4th DCA 2005) (per curiam affirmance citing Carroll and Bletcher).

because subsection (6), unlike subsection (5), separately addresses the offenses of driving without a license and driving after cancelation, suspension or revocation of a driver’s “license or . . . privilege”:

Any person who operates a motor vehicle:

Without having a driver’s license as required under s. 322.03; or

While his or her driver’s license or driving privilege is canceled, suspended, or revoked pursuant to s. 316.655, s. 322.26(8), s. 322.27(2), or s. 322.28(2) or (4), and who by careless or negligence operation of the motor vehicle causes the death of or serious bodily injury to another human being is guilty of a felony of the third degree . . . .

(Emphasis supplied.) In subsection (6), the Legislature drew a distinction between the act of driving without a valid driver’s license and the act of driving after cancelation, suspension or revocation of a driver’s “license or . . . privilege.” Under subsection (5), however, because the state did not prove that Mr. Crain ever had a driver’s license, it could not prove that he drove while his driver’s license was revoked.

Although certain provisions in chapter 322 contain the term “driving privilege,” the provisions that pertain to cases like the present case refer only to a “driver’s license,”6 “a certificate that . . . authorizes an individual to drive a motor

6 For example, section 322.271(1)(b), Florida Statutes (2009), which is referenced in section 322.27(5), provides that a “person whose driving privilege has been revoked under s. 322.27(5) may, upon expiration of 12 months from the date of such revocation, petition the department for reinstatement of his or her

vehicle.” § 322.01(17), Fla. Stat. (2009). It “‘is a firmly established rule that “Courts must apply a statute as they find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation.”’” Guilder v. State, 899 So. 2d 412, 419 (Fla. 4th DCA 2005) (quoting State v. Aiuppa, 298 So. 2d 391, 404 (Fla. 1974)).

Accordingly, we reverse and remand with instructions to vacate Mr. Crain’s conviction as a habitual traffic offender for driving while his (nonexistent) license was revoked, and adjudicate him guilty of the lesser included offense of driving without a valid driver’s license. See § 924.34, Fla. Stat. (2009).

Reversed and remanded with directions.

CLARK, J., CONCURS; MARSTILLER, J., DISSENTS WITH OPINION.

driving privilege.” But, section 322.27(5), Florida Statutes (2009), states that DHSMV shall revoke a habitual offender’s license.

MARSTILLER, J., dissenting.

I respectfully dissent from the majority opinion for I believe it reaches a result not intended by the Legislature. Section 322.34 sets forth an overall scheme by which the Legislature penalizes individuals who persist in driving even though their driver’s license or driving privilege has been suspended or revoked. Although subsection (5), the provision at issue here, does not refer to revocation of one’s “driver’s license or driving privilege,” virtually all the other subsections in the statute do. See §§ 322.34(1) (prohibiting driving while “driver’s license or driving privilege” canceled, suspended or revoked); 322.34(2) (prohibiting knowingly driving while “driver’s license or driving privilege” canceled, suspended or revoked); 322.34(6) (making it a third degree felony to cause death or serious bodily to a person by negligent operation of vehicle when “driver’s license or driving privilege” canceled, suspended or revoked under specified statutes); 322.34(7) (prohibiting driving of commercial vehicle while “driver’s license or driving privilege” canceled, suspended or revoked); 322.34(8)(a) (“Upon the arrest of a person for the offense of driving while the person’s driver’s license or driving privilege is suspended or revoked,” arresting officer must determine, inter alia, if revocation is for habitual traffic offender status) (emphasis added); 322.34(10)(a)(6) and (b) (providing a less severe criminal penalty for driving when one has “been designated a habitual traffic offender under s. 322.264(1) as a result

of suspensions of his or her driver’s license or driver privilege” for specified violations) (emphasis added).

The Legislature’s repeated reference to a driving privilege and use of the disjunctive “or” in the phrase “driver’s license or driving privilege” indicate that one does have, as the State posits in this appeal, a privilege that can be suspended or revoked even in the absence of a valid license. Indeed, chapter 322 is replete with provisions referring to a “driver’s license or driving privilege.” One can easily envision circumstances in which an unlicensed driver could commit a prohibited act for which his or her driving privilege is taken away. For example, an unlicensed driver would lose her driving privilege under section 322.26, Florida Statutes, which requires DHSMV to “revoke the license or driving privilege of any person upon receiving a record of such person’s conviction of” certain offenses, including murder or manslaughter resulting from the operation of a vehicle, or commission of a felony using a vehicle. Or, as provided in section 322.34(10)(a)1, a parent who does not have a driver’s license may lose her driving privilege, i.e., the ability to obtain a license, for failing to pay child support.

Ignoring the other provisions in section 322.34 and refusing to read the statute in pari materia leads the majority to unreasonably conclude that subsection (5) “does not outlaw driving by drivers never issued a license to drive.” (Majority op. at 5) True, courts must strictly construe penal statutes. But “[i]t is also true

that a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). “[A]lthough strict construction of penal statutes is generally proper, no statute should be construed so as to defeat the intention of the legislature.” Dep’t of Highway Safety and Motor Veh. v. Patrick, 895 So. 2d 1131, 1136 (Fla. 5th DCA 2005). The legislative intent behind section 322.34(5) is to punish habitual traffic offenders who persist in driving unlawfully more severely than other offenders who have not been branded “habitual.” Today’s decision allows the appellant—and now every potential habitual traffic offender—to escape punishment by exploiting an instance of imprecise statutory drafting. I am also concerned that the majority’s reading of sections 322.264, 322.27(5) and 322.34(5) as operating only against licensed persons not only obstructs legislative intent as to those provisions, but also affects the operation of any other provisions in chapter 322 that may lack the phrase “or driving privilege.”

For these reasons, I dissent from the majority opinion and would affirm the appellant’s conviction.

Courtesy of David Edelstein

Bookmark It

Hide Sites

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

BARON GREENWADE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-4330

Opinion filed January 24, 2012.

An appeal from the Circuit Court for Duval County. David M. Gooding, Judge.

Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.

MARSTILLER, J.

Appellant pled guilty to possession of a firearm by a convicted felon, possession of controlled substance paraphernalia, and resisting an officer without violence. A jury found him guilty of trafficking in cocaine in amount more than 200 grams, but less than 400 grams. The sole issue Appellant raises is whether the

trial court should have granted his motion for judgment of acquittal on the cocaine trafficking charge because the state combined, tested and weighed the contents of nine small bags found in his possession instead of testing each bag for cocaine before commingling and weighing their contents. We affirm the conviction.

Detective Donald Bishop and other officers from the Jacksonville Sheriff’s Office executed a search warrant at a residence in Jacksonville. There, they found Appellant sitting behind a table in the garage and, after thwarting his attempt to escape, they placed him in custody. Once detained, Appellant told Detective Bishop, “What you are looking for is in the garage.” He directed the detective back to the garage and to the table behind which he had been sitting. On the table was a digital scale, and beside the table was a green bag. Appellant admitted the bag contained cocaine. Lying atop the bag was a spoon with cocaine residue on it. And inside the bag Detective Bishop found nine powder-filled one-ounce plastic baggies. After Detective Bishop read Appellant his Miranda1 rights, Appellant admitted the cocaine was his.

Every baggie was field tested before transfer to the Sheriff’s Office property room. Once there, they were emptied and each baggie put in its own envelope. According to Detective Bishop, it is standard procedure to combine the contents of individual packets for subsequent lab testing.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

FDLE2 forensic chemist, Dr. Katherine Warniment, received one sealed Ziploc bag containing an amount of off-white powder for testing to identify any controlled substances in the powder. Chemical tests she performed confirmed the powder contained cocaine. She also determined the substance in the Ziploc bag weighed 234.5 grams. Dr. Warniment did not—and does not—test for purity because the law does not require the lab to quantify the amount of cocaine in a given sample.

Indeed, under section 893.135(1)(b)1, Florida Statutes (2009):

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a) 4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,” . . .. If the quantity involved:

* * *

b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.

(emphasis added). The Florida Supreme Court has said that in deciding to penalize possession of mixtures or compounds containing cocaine, “the legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted

2 Florida Department of Law Enforcement

cocaine and thus could pose a greater potential for harm to the public.” State v. Yu, 400 So. 2d 762, 765 (Fla. 1981). Keeping in mind this policy decision by the legislature, we consider whether the State produced evidence that Appellant possessed between 200 and 400 grams of cocaine sufficient to survive a motion for judgment of acquittal.

The Third District first held in Ross v. State, 528 So. 2d 1237, 1239 (Fla. 3d DCA 1988), that where “the subject cocaine or mixture [is] contained . . . in a series of separately wrapped packets,” the State must “establish that each of the subject packets contains cocaine or a mixture thereof which in the aggregate satisfies the above statutory weight.” In that case, law enforcement officers seized from the appellant a brown paper bag holding two bundles of plastic packets containing white powder. One bundle contained 36 packets; the other contained 56 packets. The crime lab chemically tested two of the 92 packets, one from each bundle, and determined both contained cocaine. The lab technician then combined the contents of all 92 packets and obtained a total weight for the contents of 38.8 grams. On that evidence, a jury found the appellant guilty of trafficking in cocaine. The Third District reversed the conviction, concluding that the State failed to prove the appellant possessed 28 grams or more of cocaine or a mixture of cocaine because only two of the seized packets were tested. Id. The court reasoned:

[T]he fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have a similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.

Id. at 1239-40. The Third District later employed this reasoning to affirm an order reducing heroin trafficking charges to simple possession where the white powder was contained in capsules, but only a random sample of capsules were chemically tested before commingling the contents of all capsules for weighing. See State v. Clark, 538 So. 2d 500, 501 (Fla. 3d DCA 1989).

Applying the rationale in Ross, the Second District in Safford v. State, 708 So. 2d 676, 677 (Fla. 2d DCA 1998), reversed a cocaine trafficking conviction and reduced it to simple possession where the contents of 40 foil packets containing white powder were combined into one mixture before chemical testing. In Sheridan v. State, 850 So. 2d 638 (Fla. 2d DCA 2003), the court ruled similarly on an amphetamine trafficking conviction. There, sheriff’s deputies found two bags containing white powder in the car the appellant was driving. One or both field tested positive for methamphetamine, leading the appellant to admit he was planning to trade one ounce of methamphetamine for two pounds of marijuana. The contents of the bags were combined and sent to the lab where chemical tests confirmed the field test results. The combined contents weighed 23 grams,

exceeding the 14 gram statutory threshold for trafficking in amphetamine. The court condemned the commingling procedure and opined that it “created an assumption as to the amount without the necessary proof. Thus, the evidence of trafficking was legally insufficient and should not have gone to the jury.” Id. at 640. See also Smith v. State, 835 So. 2d 387 (Fla. 2d DCA 2003).

We respectfully decline to follow Ross, Safford and Sheridan because, in our view, their apparent bright line rule creates an untenable distinction between cases involving multiple packages of suspicious white powder and cases involving just one package. To illustrate, if in this case Detective Bishop had found one large plastic bagful of powder inside the green bag Appellant led him to, there would be no question that testing a sample and weighing the powder would yield sufficient evidence to prove Appellant possessed more than 200 grams of cocaine or a mixture of cocaine. But take that same bagful of powder and split it into nine small saleable packets, and Ross et al. hold that to prove the weight element of trafficking, the State now must test a sample from each packet, determine which contain cocaine, and weigh only those—even if presumptive field testing detects cocaine in every packet, see Smith at 388, and other circumstances, such as the way the packets are bundled together (Ross) or an admission by the defendant (Sheridan), would permit a jury to reasonably infer all the packets contain an illegal substance.

The rationale underlying the so-called rule against commingling, see Lyons v. State, 807 So. 2d 709, 710 (Fla. 5th DCA 2002), is that where several individual packets contain suspected cocaine (or some other contraband in powder form), one or more of the packets might contain some “other chemical compound[ ] which [has] a similar white powdery appearance.” Ross, 528 So. 2d at 1239-40. But we go back to Yu and the Legislature’s policy reason for penalizing possession of mixtures or compounds containing cocaine: pure cocaine can be (and assuredly is) diluted with other substances to facilitate broader distribution. This policy, we believe, legitimizes the practice of commingling multiple packets for chemical testing and weighing, where the circumstances attending the discovery and seizure of the packets permit the reasonable conclusion that they contained contraband, and perhaps other substances, to be used in illegal drug distribution.

We find such circumstances present in the instant case. Appellant, whom officers apprehended after executing a residential search warrant, told Detective Bishop, “What you are looking for is in the garage.” There, stored together inside a green bag were the nine individual baggies of white powder. Appellant admitted the bag contained cocaine. On top of the bag was a spoon with cocaine residue on it, and on the table beside the bag was a digital scale—tools of the drug trade. All the seized baggies were field tested before their contents were combined and sent to the FDLE lab. This evidence, together with the positive chemical test performed

on the commingled powder, was sufficient for the jury to find Appellant had more than 200 grams of cocaine or a mixture of cocaine in his possession. As Judge Schwartz reasoned in his dissent in Ross:

It seems to me, as it must have to the jury, eminently reasonable to conclude that the material in the packet randomly selected from each of the two bundles was representative and characteristic of the other ones, which were otherwise identical in every way. . . . [A] reasonable person could conclude beyond a reasonable doubt that all of the packages in the two bundles contained cocaine. Since both bundles were possessed at the same time by the same person, the defendant Ross, I believe that they were properly added together in order to reach the trafficking threshold . . . .

Ross, 528 So. 2d at 1241 (Schwartz, C.J., dissenting in part) (citations omitted); cj Lyons, 807 So. 2d at 711 (affirming trafficking conviction because, although contents of two “bricks” of powder were commingled before testing and weighing, they were approximately the same size, otherwise similar in appearance, and hidden together in single taped-up Cornflakes box, allowing reasonable inference they both contained mixtures of cocaine).

In sum, for the reasons stated above, we affirm Appellant’s conviction for trafficking in cocaine. We certify conflict with Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1988), Safford v. State, 708 So. 2d 676 (Fla. 2d DCA 1998), and Sheridan v. State, 850 So. 2d 638 (Fla. 2d DCA 2003), to the extent those cases hold that the lab’s failure to test each package before commingling to determine weight renders

insufficient the State’s evidence of trafficking, notwithstanding other circumstantial evidence of the offense.

AFFIRMED; CONFLICT CERTIFIED.

WETHERELL AND SWANSON, JJ., CONCUR.

Courtesy of David Edelstein

Bookmark It

Hide Sites

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

LYNDAL KENNETH WILKINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-5504

Opinion filed January 24, 2012.

An appeal from the Circuit Court for Santa Rosa County. Marci L. Goodman, Judge.

Lyndal Kenneth Wilkins, pro se; Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In this Anders1 appeal, Lyndal Kenneth Wilkins, Appellant, challenges his judgments and sentences for burglary of a dwelling while armed with a dangerous

1 Anders v. California, 386 U.S. 738 (1967).

weapon (count I), attempted armed kidnapping with a weapon (count II), aggravated stalking by credible threat (count III), possession of a short-barreled shotgun (count IV), and possession of burglary tools (count V). After a preliminary review of the record on appeal, we directed appellate counsel and the State to file supplemental briefs to address the issue of whether Appellant was improperly convicted and sentenced for count II after the State nolle prossed this count. The parties complied, and the State conceded error. We agree that error occurred; thus, we reverse and remand Appellant’s judgment and sentence for count II with directions to the trial court to vacate the imposition of sentence for count II, and we direct the Clerk of the Court to amend its records to reflect the announcement of a nolle prosequi of count II by the State. We otherwise affirm Appellant’s remaining judgments and sentences without discussion.

In this case, the State nolle prossed count II in exchange for Appellant accepting a plea. Nevertheless, after Appellant accepted the State’s plea, the trial court adjudicated Appellant guilty of count II and imposed a sentence for this count. The State may file a nolle prosequi at any time prior to the swearing in of the jury. State v. Kahmke, 468 So. 2d 284, 285 (Fla. 1st DCA 1985). In addition, since the decision to nolle prosse a cause is within the sole discretion of the State, it may do so without the permission of the trial court. Id. Consequently, “a ‘nolle prosequi effectively ends the proceeding, and any action taken subsequent to the

filing of the nolle prosequi is a nullity.’” State v. Aguilar, 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008) (quoting Sadler v. State, 949 So. 2d 303, 305 (Fla. 5th DCA 2007)).

Here, it is apparent from the record on appeal that error was unintended because the trial court acknowledged that the State nolle prossed count II. However, it is undisputed that the trial court improperly adjudicated Appellant guilty and sentenced him for count II.

We, therefore, reverse and remand Appellant’s judgment and sentence for count II with directions to the trial court to vacate the imposition of sentence for count II and we direct the Clerk of the Court to amend its records to reflect the announcement of a nolle prosequi of count II by the State. We otherwise affirm Appellant’s remaining judgments and sentences.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.

Courtesy of David Edelstein

Bookmark It

Hide Sites

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

TIMOTHY E. WHITE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-4240

Opinion filed January 24, 2012.

Petition for Writ of Mandamus — Original Jurisdiction. Timothy E. White, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for writ of mandamus is denied on the merits. Petitioner’s motion to show cause is denied.

BENTON, C.J., CLARK and MARSTILLER, JJ., CONCUR.

Courtesy of David Edelstein

Bookmark It

Hide Sites

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

RODGER BUTLER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-5936

Opinion filed January 24, 2012.

An appeal from an order of the Circuit Court for Columbia County. Julian E. Collins, Judge.

Rodger Butler, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Upon consideration of the appellant’s Motion to Show Cause, which the Court treats as a response to the Court’s order of December 16, 2011, the Court has determined that the order is not subject to independent appellate review.

Accordingly, the appeal is dismissed. However, the dismissal is without prejudice to seek review by motion in case number 1D11-4793 in the event that the appellant’s petition for belated appeal is granted. See Fla. R. App. P. 9.140(h)(4). The appellant’s Motion for Enlargement of Time, filed on December 5, 2011, is denied as moot.

PADOVANO, THOMAS, and SWANSON, JJ., CONCUR.

Courtesy of David Edelstein

Bookmark It

Hide Sites

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

C.S.K., a child,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 1D11-6790

Opinion filed January 24, 2012.

Petition for Belated Appeal — Original Jurisdiction.

Elizabeth Yerrington, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Jacksonville, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

Petitioner is granted a belated appeal of the November 7, 2011, restitution order in Duval County Circuit Court case number 16-2011-CJ-002669. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

PADOVANO, THOMAS, and SWANSON, JJ., CONCUR.

Courtesy of David Edelstein

Bookmark It

Hide Sites