STATE OF FLORIDA, APPELLANT,
v.
GARY CLARK COHEN, AND JOHN CHRIS DAVIS, APPELLEES
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Florida appellate court reversed the dismissal of attempted cocaine sale charges where the substance actually sold was lidocaine (an uncontrolled substance). The court held that possession of the controlled substance is not a necessary element of attempted drug sale, and defendants may be convicted based on intent and overt acts even when the actual substance differs from the charged drug.
Possession of the controlled substance is not a necessary element of attempted drug sale. Defendants may be convicted of attempted cocaine sale despite the absence of the actual controlled substance, provided the State proves: (1) intent to commit the crime, (2) an overt act, and (3) that the act fell short due to circumstances independent of the defendants' will.
[1] A criminal attempt requires intent to commit a crime and an overt act that falls short of the ultimate design due to circumstances independent of the attemptor's will.
[2] The sale of an uncontrolled substance instead of a controlled substance does not negate a charge of attempted sale of the controlled substance.
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Join FLexlaw to unlock all legal intelligence“Possession is not a necessary element of the charge under Section 893.13(l)(a), Florida Statutes.”
Establishes the core holding that possession of the controlled substance is not required for attempted drug sale charges.
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Join FLexlaw to unlock all legal intelligenceAn undercover agent purchased what was represented as cocaine from defendants Cohen and Davis. The substance was later identified as lidocaine, an unc…
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PER CURIAM.
This is a consolidated’appeal from summary dismissal of Count II of the State’s information charging appellees with attempted sale of cocaine. The trial judge dismissed the charges because the substance sold to an undercover agent as cocaine was later identified as lidocaine, an uncontrolled substance. In dismissing the charges the judge indicated that the State would have to present evidence of possession of cocaine with intent to sell and this would be impossible since the substance was not cocaine. We disagree. Possession is not a necessary element of the charge under Section 893.-13(l)(a), Florida Statutes.
Criminal attempt occurs when (1) there is intent to commit a crime, and (2) there is an overt act which (3) falls short of the ultimate design due to circumstances independent of the will of the attemptor. Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972); Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA 1967). Here, we have evidence of the third element of attempt. The existence of a substance other than cocaine serves only to lower the charged offense from sale of cocaine to attempted sale of cocaine. The sale of an uncontrolled substance instead of cocaine is not a defense to attempted sale if the State can prove the other two elements of the attempt.
Although we find no Florida cases directly on point, the federal case of United States v. Oviedo, 525 F. 2d 881 (5th Cir. 1976), is factually similar in that it involved a conviction for attempted distribution of heroin when the substance was in fact uncontrolled procaine. The court reversed because Oviedo’s conduct did not provide a strong objective basis for determination of criminal intent without the objective evidence of the heroin. However, that court recognized that the defendant could be found guilty of attempted sale of heroin, even absent existence of the drug, if the objective acts of the defendant were consistent with a criminal enterprise.
We find that the reasoning in United States v. Oviedo is consistent with Florida law on attempt, and the defendants should not be allowed to escape prosecution because an independent circumstance intervened to prevent the crime which they intended to commit and acted to carry out. The State should be allowed to present evidence of defendants’ intent as well as objective acts marking their conduct as criminal in nature. Thereupon, the trier of fact can decide whether the defendants are guilty of an attempted sale of cocaine even absent the major objective element of the controlled substance itself.
We REVERSE and REMAND.
SHAW and JOANOS, JJ., and CAW-THON, VICTOR M., Associate Judge, concur.
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Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990)…st concerning the nature and weight of the cocaine. As stated in Ritter, the charge of “attempt” does not require proof that the substance involved was actually cocaine. See also United States v. Pietri, 683 F. 2d 877 (5th Cir.1982); State v. Cohen, 409 So. 2d 64 (Fla. 1st DCA 1982). The conviction is affirmed. Since the offense was committed prior to October 1, 1988, the sentence is subject to the sentencing guidelines as determined by Whitehead v. State, 498 So. 2d 863 (Fla.1986). The only ground listed t…
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State v. Rios, 409 So. 2d 241 (Fla. 3d DCA 1982)…ves them to be.” ALI, Model Penal Code § 5.01(a) (proposed official draft, May 4, 1962). This analysis is fully supported by recent decisions of the First and Fourth District Courts of Appeal with which we are in complete agreement. State v. Cohen, 409 So. 2d 64 (Fla. 4th DCA 1982) (7 FLW 180); State v. Skinner, 397 So. 2d 389 (Fla. 1st DCA 1981); Padgett v. State, 378 So. 2d 118 (Fla. 1st DCA 1980). It is further supported by the Model Penal Code § 5.01(a), supra; see also ALI, Model Penal Code § 5.01(a) C…
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Campbell v. State, 935 So. 2d 614 (Fla. 3d DCA 2006)…revented in the execution thereof, commits the offense of criminal attempt”); Brooks v. State, 762 So. 2d 879, 897 (Fla. 2000) (confirming that to establish attempted trafficking in cocaine no actual cocaine must be proved to exist); State v. Cohen, 409 So. 2d 64, 64-65 (Fla. 1st DCA 1982) (confirming that no cocaine need exist to support a conviction for attempted sale of cocaine because “[c]riminal attempt occurs when (1) there is intent to commit a crime, and (2) there is an overt act which (3) falls shor…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976)
- Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA 1967)
- Alphonso Clarence Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972)