PHILIP NEWMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Philip Newman was convicted of conspiracy to traffic in cocaine and trafficking in cocaine by delivery. The appellate court affirmed his conviction, holding that the evidence supported a finding of constructive delivery despite Newman's argument that the drugs remained in the possession of his co-conspirators throughout the transaction.
A jury could reasonably find that delivery occurred because the transaction was complete—the deal was done, the contraband had been sampled and displayed, and only the physical transfer of payment remained. This constituted at minimum a constructive delivery under Florida law.
[1] Trafficking in cocaine by delivery occurs when there is an actual, constructive, or attempted transfer of the controlled substance from one person to another.
[2] A jury may find that a constructive delivery of cocaine occurred when the substance has been sampled, is present, and all that remains is the physical transfer of funds.
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Join FLexlaw to unlock all legal intelligence“Trafficking in cocaine by delivery occurs when there is an actual, constructive or attempted transfer of the controlled substance from one person to another.”
Establishes the statutory definition of trafficking by delivery that encompasses more than actual transfer of physical possession.
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Join FLexlaw to unlock all legal intelligenceAn undercover detective arranged to purchase cocaine through an intermediary. At a residence, the detective met Newman, David Acosta, and Vincent Medi…
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PER CURIAM.
Defendant was convicted of conspiracy to traffic in cocaine and trafficking in cocaine by delivery. We affirm.
We opt to discuss only what occurred on the day of the alleged delivery, not on the days prior thereto; as we shall discuss only the charge of “delivery,” not conspiracy.
On the morning in question, Glen Taylor informed undercover detective Daniel Lo-sey that he was going to use a connection to get cocaine. After some postponements Taylor informed Losey that the supply had arrived, and the two met at Taylor’s residence in Lauderhill.
When the two entered the house, Taylor introduced Losey to David Acosta, Vincent Medina and appellant. Appellant indicated that next time Losey could just call and everything could be ready.
Losey said he wanted to look at the cocaine and then he would call the person with the money. Medina went out and returned with a paper bag, which he placed on the kitchen table. Acosta took a white package out of the bag. Medina and appellant cut a small opening in the package, exposing a white powder. Losey said he would call his money man. He telephoned Detective Adderley and told him to come over. Medina put the package back in the paper bag and left with it. Losey objected that the goods were being removed. Appellant told him the package was being placed in the car. Medina subsequently returned to the house.
When Adderley arrived, he said he would not bring the money in until the cocaine was also there. Adderley testified that Taylor then told him if he entered he would get the “stuff.” Adderley entered and Medina brought in two brown paper bags, placing them on the kitchen table. Acosta opened them and placed on the table two packages like the one Losey had been shown earlier. Adderley took a small amount of the substance and rubbed it in his hand. He said he would bring in the money. Adderley and Taylor went out. Taylor was placed under arrest in Adderley’s car by surveillance officers. A group of these officers followed Adderley to the townhouse and after a struggle between Adderley and appellant at the door, entered and arrested the remaining subjects, including appellant.
Trafficking in cocaine by delivery occurs when there is an actual, constructive or attempted transfer of the controlled substance from one person to another. § 893.02(5), Fla.Stat. (1985). Appellant argues the cocaine quite deliberately remained in the possession of Acosta and Medina throughout the episode in which appellant was an actor, and therefore there was not so much as even an attempted transfer. We conclude that a jury could find that there was a delivery. The deal was done. The contraband, which had been sampled, was on the table. All that remained was the physical transfer of the funds. At the very least this was a constructive delivery. See State v. Vinson, 298 So. 2d 505 (Fla. 2d DCA 1974), appeal after remand (on other grounds), 320 So. 2d 50 (Fla. 2d DCA 1975), affirmed, 345 So. 2d 711 (Fla.1977). There was no reason for the officers to continue the charade. We therefore affirm the judgment and sentence.
GLICKSTEIN, GUNTHER, and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnson v. State, 602 So. 2d 1288 (Fla. 1992)…te, 541 So. 2d 1240 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989) (delivery of cocaine convictions affirmed where defendant offered two pieces of rock cocaine to officer, officer bought one and defendant retained the other); Newman v. State, 522 So. 2d 71 (Fla. 4th DCA 1988) (defendant’s conviction for trafficking in cocaine by constructive delivery affirmed where cocaine was sampled and cocaine and [*1293] money not yet exchanged); King v. State, 336 So. 2d 1200 (Fla. 2d DCA 1976), cert. denied, 345…
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Johnson v. State, 578 So. 2d 419 (Fla. 5th DCA 1991)…te, 541 So. 2d 1240 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989) (delivery of cocaine convictions affirmed where defendant offered two pieces of rock cocaine to officer, officer bought one and defendant retained the other); Newman v. State, 522 So. 2d 71 (Fla. 4th DCA 1988) (defendant’s conviction for trafficking in cocaine by constructive delivery affirmed where cocaine was sampled and cocaine and money not yet exchanged); King v. State, 336 So. 2d 1200 (Fla. 2d DCA 1976), cert. denied, 345 So. 2d…
Authorities Cited
- Hutchins v. State, 345 So. 2d 711 (Fla. 1977)
- State v. Vinson, 320 So. 2d 50 (Fla. 2d DCA 1975)
- State v. Vinson, 298 So. 2d 505 (Fla. 2d DCA 1974)