DOUGLAS DRANE WAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1984-11-15
No. 83-881
COWART, J., concurs., FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.
458 So. 2d 881 Florida District Court of Appeal, Fifth District (1984) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Douglas Way appeals his cocaine trafficking conviction, arguing the trial court erred by failing to instruct the jury that the state must prove he knew the amount of cocaine possessed was 28 grams or more. The Fifth District affirms the conviction but certifies the knowledge-of-weight question to the Florida Supreme Court for definitive interpretation.


Holding

The court affirms Way's conviction, holding that knowledge of the weight is not required as an element of the crime. The statute requires only that the defendant knowingly possess cocaine (knowing its nature as a substance), not that he know the specific weight threshold. The court certifies the question to the Florida Supreme Court for definitive interpretation.


Headnotes

[1] Proof that a defendant knows the weight of the substance possessed equals 28 grams or more is not essential for a conviction under section 893.135(1)(b), Florida Statutes…

[2] A statute's "knowingly" element modifies the act of possession and the nature of the substance, but not the quantity of the substance possessed.

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Key Quotes

“Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine... is guilty of... trafficking in cocaine.”

The statute at issue in the case, establishing the elements and language of the trafficking offense.

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Facts & Procedural History

Way was charged with trafficking in cocaine under Florida Statute section 893.135(l)(b)1, which requires possession of 28 grams or more of cocaine. Th…

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Opinion of the Court
SHARP, Judge.

SHARP, Judge.

Way appeals from a judgment adjudicating him guilty of trafficking in cocaine and sentencing him to three years imprisonment and a $50,000.00 fine pursuant to section 893.135(l)(b)l, Florida Statutes (1981). He argues that the trial court erred in failing to give his requested jury instruction that the state must prove he knew the amount of cocaine he possessed was twenty-eight grams or more. We affirm.

Section 893.135(l)(b)l provides:

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine... is guilty of... trafficking in cocaine. Way argues that one of the two “knowing-lys” modifies both the elements of “possession” and the amount “28 grams.” The trial court instructed the jury that the state had to prove that Way knew the substance he possessed was cocaine, but it refused to instruct the jury that the state need also prove Way knew the mixture weighed 28 grams or more.1

This instruction varied from the Florida Standard Jury Instruction2 by adding the additional requirement that the state must prove that a defendant knew the nature of the substance possessed, pursuant to the holding in State v. Ryan, 413 So. 2d 411 (Fla. 4th DCA 1982). In Wiesenberg v. State, 455 So. 2d 633 (Fla. 5th DCA 1984), we approved this instruction, and rejected Way’s argument that proof of knowledge of weight is also essential.

In our view, Way’s interpretation of section 893.135(l)(b) would require reading three “knowinglys” into the statute where at best there are only two. Further, it would make proof of violation of this statute exceedingly difficult as a practical matter. Many people in this state do not know the metric system, or that one ounce of cocaine equals twenty-eight plus grams. Proof of knowledge of such facts and others such as accuracy of a defendant’s scales, would make enforcement of this law a rarity. We do not think this was the intention of the Florida Legislature.

However, in view of the lack of precedent other than our own and the public importance of obtaining a definitive interpretation of this criminal statute, Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following:

IS PROOF THAT A DEFENDANT KNOWS THAT THE WEIGHT OF THE SUBSTANCE POSSESSED EQUALS 28 GRAMS OR MORE ESSENTIAL IN OBTAINING A CONVICTION UNDER SECTION 893.135(l)(b)? AFFIRMED.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

. The trial court gave the following instructions:

Before you can find the Defendant guilty of trafficking in cocaine, the State must prove the following three elements beyond a reasonable doubt: Element number one, that Defendant knowingly sold, delivered or possessed a certain substance. Element number two, the defendant knew the substance was cocaine or a mixture containing cocaine. And element number three, the quantity of the cocaine involved was twenty-eight grams or more.

. The Florida Standard Jury Instructions in Criminal Cases, p. 230 read:

Before you can find the defendant guilty of Trafficking in Cocaine, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) knowingly [sold] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was [cocaine] [a mixture containing cocaine]. 3. The quantity of the cocaine involved was 28 grams or more.
Concurrence
FRANK D. UPCHURCH, Jr., Judge,

FRANK D. UPCHURCH, Jr., Judge,

concurring specially.

While I concur with the majority opinion, I see no reason to certify the question as a matter of great public importance. It is important only to those in the illicit drug trade who think they have found a technical defect in the statute. The interest of the public is best served by waiting until another district court of appeal is persuaded by the “logic” of the defense argument. A conflict will then exist and review can be by the Florida Supreme Court in the exercise of its discretionary jurisdiction.


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Citator

Cited By

  • State v. Dominguez, 509 So. 2d 917 (Fla. 1987)
    …the state relies in part on two cases holding that the jury need not find that a defendant specifically knew he possessed more than 28 grams of cocaine, a statutory requirement. Wiesenberg v. State, 455 So. 2d 633 (Fla. 5th DCA 1984); Way v. State, 458 So. 2d 881 (Fla. 5th DCA 1984), approved, 475 So. 2d 239 (Fla.1985). Although specific knowledge of the weight of cocaine is not required, we cannot agree that the same conclusion is true when the defendant asserts no knowledge of the nature of the substance.…
  • WAY v. State, 475 So. 2d 239 (Fla. 1985)
    …OVERTON, Justice. This is a petition to review a decision of the Fifth District Court of Appeal reported as Way v. State, 458 So. 2d 881 (Fla. 5th DCA 1984), which upheld petitioner’s conviction of trafficking in cocaine. Petitioner was charged under section 893.135(l)(b)l, Florida Statutes (1981), which provides in part: Any person who knowingly sells, manufacturers, delivers, or…

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