MILTON J. COOPER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court did not abuse its discretion in refusing to give an entrapment instruction to the jury.
Defendant was charged with sale and possession of marijuana and found guilty of possession with intent to sell. The evidence showed police enticed the…
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STARNES, HUGH E., Associate Judge.
Defendant was charged with sale and possession of marijuana, and found guilty by a jury of possession of marijuana with intent to sell. The trial court refused to give an entrapment instruction. Defendant appeals this refusal, after judgment of guilt and a sentence was rendered by the trial court.
After reviewing the testimony we are satisfied that the trial court did not abuse its discretion in refusing the entrapment instruction. No evidence was produced to show that the defendant was enticed to possess what he would not have possessed otherwise. Rather, the evidence shows that the police merely enticed him into possessing it in their presence, so that they would have direct evidence of possession of a controlled substance. This brings the case within the rule of Koptyra v. State, 172 So. 2d 628 (Fla. 2nd DCA 1965).
The state relies on Beasley v. State, 354 So. 2d 934 (Fla. 2nd DCA 1978), which states:
“At the outset, we need not consider the issue as it relates to the two convictions for possession because entrapment is not a defense to possession. English v. State, 301 So. 2d 813 (Fla. 2d DCA 1974).”
After reviewing English v. State, we believe that the foregoing statement is too broad and that English states not that entrapment could never be a defense to possession of a controlled substance, but only that it was not a defense under the facts of that case. Thus, Koptyra is still the controlling case law on this subject.
Affirmed.
HOBSON, Acting C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Marrero v. State, 493 So. 2d 463 (Fla. 3d DCA 1985)…t taint a conviction for the separate offense of possession of marijuana which the defendant admitted he had all along. The import of English and Beasley was, however, later severely limited by the second district court’s opinion in Cooper v. State, 378 So. 2d 793, 794 (Fla. 2d DCA 1979), wherein the court explained that "the ... [English\ statement is too broad and that English states not that entrapment could never be a defense to possession of a controlled substance, but only that it was not a defense unde…
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State v. Harklerode, 567 So. 2d 982 (Fla. 5th DCA 1990)…. . The state also argues that entrapment is not a defense to mere possession of drugs, citing to Beasley v. State, 354 So. 2d 934 (Fla. 2d DCA 1978), which relied on English v. State, 301 So. 2d 813 (Fla. 2d DCA 1974). However, in Cooper v. State, 378 So. 2d 793 (Fla. 2d DCA 1979), the court held that English stood only for the proposition that under the facts of that particular case, entrapment could not be a defense to possession, and not for the broad principle that entrapment could never be a defense to…
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Kent v. State, 704 So. 2d 121 (Fla. 1st DCA 1997)…n of cocaine. Whether entrapment is available as a defense to possession of contraband depends on the facts. Compare, English v. State, 301 So. 2d 813 (Fla. 2d DCA 1974), and Beasley v. State, 354 So. 2d 934 (Fla. 2d DCA 1978), with Cooper v. State, 378 So. 2d 793 (Fla.App. 2d DCA 1980) and State v. Harklerode, 567 So. 2d 982 (Fla. 5th DCA 1990). Here, entrapment might have been available as a defense to the lesser charge of possession, because the defendant obtained the drug at the request of the officers af…
Authorities Cited
- Koptyra v. State, 172 So. 2d 628 (Fla. 2d DCA 1965)
- English v. State, 301 So. 2d 813 (Fla. 2d DCA 1974)
- Beasley v. State, 354 So. 2d 934 (Fla. 2d DCA 1978)