MICHAEL P. MCINTIRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's felony conviction for delivery of cannabis in excess of five grams was reversed and remanded for entry of a misdemeanor conviction for delivery of not more than five grams because, under the retroactively applied Purifoy standard excluding both stems and stalks from weight calculations, the evidence was insufficient to support the felony charge.
When cannabis weight is measured excluding both stems and stalks under Purifoy v. State, the evidence was insufficient to support a felony conviction for delivery in excess of five grams, but sufficient for a misdemeanor conviction for delivery of not more than five grams.
[1] Appellate courts apply the law in effect at the time of appellate decision rather than at the time of trial judgment, permitting retroactive application of new legal stan…
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Join FLexlaw to unlock all legal intelligence“Disposition of a case on appeal should be made in accordance with the law in effect at the time of the appellate decision rather than the law in effect at the time the judgment was rendered.”
Court explaining the principle of retroactive application of new legal standards on appeal, citing Hendeles v. Sanford Auto Auction, Inc.
McIntire was convicted of felony delivery of cannabis in excess of five grams based on evidence showing seven grams of cannabis including stems but ex…
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SHARP, Judge.
The Appellant was convicted in the trial court of the felony offense of delivery of cannabis in excess of five grams. Testimony at trial revealed that the weight of the cannabis, including stems but excluding stalks, was seven grams. Subsequent to Appellant’s conviction the Florida Supreme Court rendered it’s decision in Purifoy v. State, 359 So. 2d 446 (Fla.1978). The Court held that because there is no difference between stems and stalks, the measuring of cannabis should exclude both stems and stalks. Disposition of a case on appeal should be made in accordance with the law in effect at the time of the appellate decision rather than the law in. effect at the time the judgment was rendered. Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467 (Fla.1978). In applying Purifoy to the case at bar we find the evidence insufficient to prove delivery of cannabis in excess of five grams. The evidence, however, does support a conviction for the lesser included offense of delivery of not more than five grams of cannabis, a misdemeanor of the first degree. Sec. 893.13, Fla.Stat. (1977).
We REVERSE AND REMAND to the trial court with directions for entry of a judgment of conviction for the lesser included offense of delivery of not more than five grams of cannabis. Sec. 924.34, Fla. Stat. (1973).
DAUKSCH, C. J., and UPCHURCH, J., concur.
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Jordan v. State, 419 So. 2d 363 (Fla. 1st DCA 1982)…prove possession of more than 100 pounds of marijuana where weight of marijuana admitted into evidence was 197 pounds, 20 ounces, but gross weight included weight of burlap and plastic bags, as well as weight of stems and stalks); McIntire v. State, 381 So. 2d 1154 (Fla. 5th DCA 1980), (conviction of possession of more than 5 grams reversed where cannabis weighed 7 grams, including stems, but not including stalks); Woodward v. State, 379 So. 2d 664 (Fla. 5th DCA 1980), (Purifoy not violated when conviction for…
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Marrero v. State, 493 So. 2d 463 (Fla. 3d DCA 1985)…prevailing law on entrapment, as established in State v. Cruz. See Wheeler v. State, 344 So. 2d 244 (Fla.1977), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979); McGoff v. State, 450 So. 2d 321 (Fla. 2d DCA 1984); McIntire v. State, 381 So. 2d 1154 (Fla. 5th DCA 1980). Applying the relevant threshold test of entrapment to the facts developed in the record before us, we conclude that the police activity leading to Marrero’s arrest “has overstepped the bounds of permissible conduct,” Cruz v. St…
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McDANIELS v. State, 388 So. 2d 259 (Fla. 5th DCA 1980)…he appellant’s motion to dismiss that charge. Showing the length of the shotgun or its barrel is an essential element of possession of a short-barrelled shotgun and must be proved. Cf. Purifoy v. State, 359 So. 2d 446 (Fla.1978); McIntire v. State, 381 So. 2d 1154 (Fla. 5th DCA 1980). Judicial notice may be taken of matters that are commonly known, but may not be used to dispense with proof of essential facts that are not judicially cognizable. Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1917); Moore v. Chocta…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467 (Fla. 1978)
- Purifoy v. State, 359 So. 2d 446 (Fla. 1978)