VICTORIA ELAINE LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Victoria Lee appeals her convictions for trafficking and possession of cocaine. The court reverses the possession conviction under Carawan v. State, which prohibits conviction for both trafficking and possession based on a single act, while affirming the trafficking conviction.
The possession conviction is reversed under Carawan v. State, which prohibits dual convictions for trafficking and possession from a single act. The trafficking conviction is affirmed. The trial court did not err in refusing the requested instruction, as it did not constitute a proper Dominguez instruction and Lee's actual defense was lack of knowledge that cocaine was in her purse.
[1] A conviction for possession of a controlled substance is reversed when the defendant is also convicted of trafficking based on the same act.
[2] A jury instruction for drug trafficking must inform the jury that the defendant must know the substance possessed is the drug charged.
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Join FLexlaw to unlock all legal intelligence“Defendant first contends that, pursuant to Carawan v. State, 515 So.2d 161 (Fla.1987), she should not have been convicted of trafficking and possession based upon a single act. We agree and therefore reverse the conviction for possession of cocaine.”
Establishes the court's core holding that dual convictions for trafficking and possession from a single act violate Carawan and must be reversed.
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Join FLexlaw to unlock all legal intelligenceLee was convicted of both trafficking and possession of cocaine based on a single act. She claimed she did not know cocaine was in her purse. The tria…
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LEHAN, Judge.
Defendant appeals her convictions for trafficking and possession of cocaine. We reverse the conviction for possession and affirm the trafficking conviction.
Defendant first contends that, pursuant to Carawan v. State, 515 So. 2d 161 (Fla.1987), she should not have been convicted of trafficking and possession based upon a single act. We agree and therefore reverse the conviction for possession of cocaine. See also Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987).
Defendant also contends that shortly before her trial the Florida Supreme Court held in State v. Dominguez, 509 So. 2d 917 (Fla.1987), that jury instructions for drug trafficking should instruct the jury that a defendant must know that the substance he or she possessed was the drug the defendant is charged with possessing. Defendant contends that she requested an instruction which would have satisfied this requirement and that the trial court erred in refusing to give the instruction. However, the instruction requested by defendant was not a Dominguez instruction and had nothing to do with defendant’s knowledge of whether the substance was cocaine. The requested instruction merely repeated in different words the instruction given to the jury that the defendant must have knowingly possessed the drug. Accordingly, the trial court did not err in refusing to give the requested instruction.
Yet, even though defendant did not request a Dominguez instruction or object to the failure to give that instruction, we must consider whether there was fundamental error from the failure to give that instruction. See Castor v. State, 365 So. 2d 701, 703 (Fla.1978). Fundamental error occurs when there is given to the jury an incorrect instruction which has the effect of negating a defense, if the evidence supports that defense. See Motley v. State, 155 Fla. 545, 20 So. 2d 798 (Fla.1945); Carter v. State, 469 So. 2d 194 (Fla. 2d DCA 1985); Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981). In this case, the instructions given to the jury, while incorrect, did not negate defendant’s defense. That defense was that defendant did not know the cocaine was in her purse. She did not contend that she knew the substance was in her purse but did not know it was cocaine. Accordingly, no fundamental error occurred.
Defendant further contends that there was fundamental error in the trial court’s failure to instruct on the lesser included offense of possession of cocaine. But defendant did not request such an instruction and did not object to the failure to give it. Where there is no request for an instruction on a lesser included offense, the issue has not been preserved for appellate review. See Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986); Walker v. State, 473 So. 2d 694, 697-98 (Fla. 1st DCA 1985).
The conviction for possession of cocaine is vacated, but the trafficking conviction is affirmed.
SCHOONOVER, A.C.J., and HALL, J., concur.
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State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)…aneous objection rule will be applied. E.g., Lawson v. State, 552 So. 2d 257 (Fla. 4th DCA 1989), review denied, 563 So. 2d 632 (Fla.1990); State v. Austin, 532 So. 2d 19 (Fla. [*646] 5th DCA), review denied, 537 So. 2d 568 (Fla.1988); Lee v. State, 526 So. 2d 777 (Fla. 2d DCA 1988). I basically agree with the applicable law as set forth in the majority opinion and I agree that, before the failure to give the instruction that “Delva must know that the property he possessed was cocaine” can be raised on appe…
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Segars v. State, 537 So. 2d 1052 (Fla. 3d DCA 1989)…crime is pertinent or material to what must actually be considered by the jury in order to convict. Williams, 400 So. 2d at 543. The incomplete instruction cannot be said to have misled the jury or negated Segars’ defense. See Banda; Lee v. State, 526 So. 2d 777 (Fla. 2d DCA 1988). Cf. Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987) (reversible error where trial court’s instruction on manslaughter failed to cover material elements of the offense and defendant asserted self-defense theory); Alejo, 483…
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Crawford v. State, 606 So. 2d 1204 (Fla. 2d DCA 1992)…he jury on attempted manslaughter was fundamental error. Defendant’s failure to request that instruction and object to the trial court’s omission thereof procedurally bars review. See McKinney v. State, 579 So. 2d 80, 83-84 (Fla.1991); Lee v. State, 526 So. 2d 777, 778 (Fla. 2d DCA 1988). In a similar case where the defendant was charged with first-degree murder and convicted of second-degree murder, whether or not there should have been given to the jury as a part of the manslaughter instruction the short…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Motley v. State, 155 Fla. 545 (Fla. 1945)
- Carter v. State, 469 So. 2d 194 (Fla. 2d DCA 1985)
- State v. Dominguez, 509 So. 2d 917 (Fla. 1987)
- Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981)
- Walker v. State, 473 So. 2d 694 (Fla. 1st DCA 1985)
- Campbell v. State, 517 So. 2d 696 (Fla. 2d DCA 1987)
- State v. Delaney, 517 So. 2d 696 (Fla. 2d DCA 1987)
- Weyrick v. State, 485 So. 2d 901 (Fla. 4th DCA 1986)