GUSTAVO ANGEL GARCES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gustavo Angel Garces appeals his conviction for trafficking in cocaine by possession, challenging the denial of his motion for acquittal. The appellate court holds that the temporary handling of cocaine during a controlled undercover transaction, before arrest and before money exchange, constitutes only attempted trafficking by possession, not completed trafficking, and reverses and remands for reduction of the conviction.
The court held that the defendant's conduct constitutes attempted trafficking by possession, not completed trafficking. Temporary control of contraband in the presence of its actual owner for purposes of verifying quality prior to consummation of the transaction, without more, does not constitute legal possession. The conviction was therefore reduced from trafficking to attempted trafficking.
[1] A buyer or receiver of drugs commits a crime of possession or attempted possession, not delivery.
[2] Temporary control of contraband for the purpose of verifying its quality, prior to consummation of the transaction, does not constitute legal possession.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Temporary control of the contraband in the presence of its actual owner, for the purpose of verifying that it is what it purports to be or to conduct a sensory test for quality, prior to consummation of the contemplated transaction, without more, does not constitute legal possession.”
Establishes the key legal principle distinguishing temporary handling for verification from actual possession in drug trafficking cases.
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Join FLexlaw to unlock all legal intelligenceAn undercover Miami police officer met with German Mederos regarding the purchase of six kilograms of cocaine. When the transaction reached the stage …
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FERGUSON, Judge.
Defendant, Gustavo Angel Garó-es, appeals from a judgment of conviction and sentence for trafficking in cocaine by possession, and from the fifteen-year mandatory minimum sentence which was imposed.
In June 1984, Miami Police detective George Lopez met with German Mederos who, according to a police informant, was interested in purchasing six kilograms of cocaine. After several meetings and phone calls between Lopez, Mederos, and Rolondo Hernandez, Mederos informed Lopez that he was ready to complete the transaction and asked Lopez to meet him at his home. When Lopez arrived at Mederos’ house, he was introduced to Guillermo Hincapié, Fernando Castaño, and the defendant. After some discussion about how the exchange should take place, the parties agreed to bring in the money before Lopez turned over the cocaine.
Hincapié and the defendant went outside to get the money. The defendant stood outside and acted as a look-out as Hincapié drove his car into the garage. After Hin-capié retrieved the money from the car’s secret compartment the two men went back inside. A second undercover officer brought in a tote bag containing two packs of cocaine. Hincapié removed one of the packs from the bag, examined the cocaine, and commented on its quality. He handed the pack over to the defendant who examined it momentarily before passing it on to Castaño. While the defendants were examining the cocaine, and before any money was exchanged, one of the men went to answer the telephone. Fearing that the arrest team would be seen as the phone was being answered, the second officer produced a firearm and placed the men under arrest.
Hernandez, Mederos, Castaño, Hincapié and the defendant were charged with trafficking in cocaine by delivering cocaine or aiding, abetting, counseling, hiring or procuring the delivery, and/or by knowingly being in actual or constructive possession of four hundred grams of cocaine in violation of section 893.135, Florida Statutes (1983).
At the close of the State’s case, defendant moved for a judgment of acquittal based on the State’s failure to prove that he had taken part in the delivery of the cocaine or to prove that he was in possession of the cocaine. The motion was denied. By this appeal defendant asserts that the trial court erred in denying his motion for judgment of acquittal.
A similar fact situation was presented in Sobrino v. State, 471 So. 2d 1333 (Fla. 3d DCA 1985) (citing Wheeler v. State, 691 P. 2d 599, 602 (Wyo.1984) and 3 C. Torcia, Wharton’s Criminal Evidence § 648 (13th ed. 1973)). It was held there that a buyer or receiver of drugs commits a crime of possession or attempted possession, not delivery. We further noted that if the offense charged had been trafficking, the defendant could have been convicted of an attempted trafficking by possession in violation of sections 893.135(l)(a) and 777.-04(1), Florida Statutes (1983), but not of the completed offense because police officers effected an arrest before the drugs were released to the actual or constructive possession 1 of the defendants. Temporary control of the contraband in the presence of its actual owner, for the purpose of verifying that it is what it purports to be or to conduct a sensory test for quality, prior to consummation of the contemplated transaction, without more, does not constitute legal possession. We agree, on authority of Sobrino v. State, and the authorities it relied upon, that the facts support a conviction for no more than attempted trafficking by possession and that the conviction should be reduced to the lesser offense accordingly.
Reversed and remanded with instructions to reduce the conviction to attempted trafficking and to resentence the defendant.
. Possession is ‘‘[t]he detention and control, or the manual or ideal custody, ... of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name.” Black’s Law Dictionary 1047 (5th ed. 1979).
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Campbell v. State, 577 So. 2d 932 (Fla. 1991)…, Justice. We have for review Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989), in which the First District Court of Appeal certified its decision as being in conflict with the decisions of the Third District Court of Appeal in Garces v. State, 485 So. 2d 847 (Fla. 3d DCA 1986), and Roberts v. State, 505 So. 2d 547 (Fla. 3d DCA 1987). We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and quash the decision below. Campbell was convicted of trafficking in 400 grams or more of cocaine…
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Roberts v. State, 505 So. 2d 547 (Fla. 3d DCA 1987)…la.Stat. (1983). We entirely agree with the defendants because they were arrested before the contraband was released into their actual or constructive possession, thus preventing their convictions for possession under our holding in Garces v. State, 485 So. 2d 847 (Fla. 3d DCA 1986). In this reverse sting operation, the defendants and eight codefendants (Holecek, Dobos, Arias, Rodriguez, St. James, Fiebig, Sipper and Swanson) surfaced as potential buyers for marijuana being offered for sale by undercover pol…1 / 2
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State v. Snyder, 635 So. 2d 1057 (Fla. 2d DCA 1994)…on of methamphetamine, the case should not be affirmed but should be remanded for further proceedings on the lesser included charge of attempted possession of methamphetamine. See Roberts v. State, 505 So. 2d 547 (Fla. 3d DCA 1987); Garces v. State, 485 So. 2d 847 (Fla. 3d DCA 1986). Next, the state filed a sworn traverse to the appellee’s motion, and because the traverse was sufficient, the motion should have been denied. The appellee admitted that he had knowledge of the nature of the contraband and its pr…
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- Sobrino v. State, 471 So. 2d 1333 (Fla. 3d DCA 1985)