HUBERT A. SPARKMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hubert Sparkman was convicted of conspiracy to sell cocaine and possession of cocaine. The court reversed his conspiracy conviction because his only named coconspirator was acquitted, making it impossible to establish the essential element of agreement required for conspiracy.
The conspiracy conviction cannot stand because the gravamen of conspiracy is the agreement between two or more persons, and where the only named coconspirator is acquitted, the defendant's conviction for conspiracy cannot be sustained.
[1] A conviction for conspiracy cannot stand when the sole alleged co-conspirator, who is not unknown, is acquitted of the conspiracy charge.
[2] A criminal conspiracy conviction requires proof of an agreement between two or more persons.
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Join FLexlaw to unlock all legal intelligence“The gravamen of the offense of criminal conspiracy is the agreement between two or more persons.”
Establishes the essential legal element required to prove conspiracy
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Join FLexlaw to unlock all legal intelligenceSparkman and Randy Gilberry were jointly tried for sale of cocaine, possession of cocaine, and conspiracy to sell cocaine. The information specificall…
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PER CURIAM.
The appellant, Hubert A. Sparkman, challenges his conviction for conspiracy to sell cocaine. We reverse.
The appellant and his codefendant, Randy Gilberry, were both charged by information with the sale of cocaine in violation of section 893.13(l)(a)(l), Florida Statutes (1985), possession of cocaine in violation of section 893.13(l)(e), Florida Statutes (1985), and conspiracy to sell cocaine in violation of section 777.04, Florida Statutes (1985). The state specifically alleged in the conspiracy count that “RANDY GILBERRY AND HUBERT SPARKMAN on the 30th day of July, 1985, ... did agree, conspire, combine and confederate together to commit an offense, to-wit, sale of cocaine, in violation of Section 777.04, Florida Statutes_”
The appellant and Gilberry were tried by a jury in a joint trial. The appellant moved for acquittal on all three counts, and he renewed this motion at the close of all the evidence. Although Gilberry was found not guilty of all three counts, the appellant was found guilty of conspiracy to sell cocaine as well as possession of cocaine. In this timely appeal, the appellant contends only that his conviction on the conspiracy charge must be reversed. We agree.
The gravamen of the offense of criminal conspiracy is the agreement between two or more persons. Pearce v. State, 330 So. 2d 783 (Fla. 1st DCA), cert. denied, 341 So. 2d 293 (Fla.1976). Where, as here, the information does not allege that the coconspirator is unknown to the state and the only other person named in the charging document as having conspired with a defendant is acquitted, the defendant’s conviction for conspiracy cannot stand. See Filer v. State, 285 So. 2d 669 (Fla. 2d DCA 1973). We, accordingly, reverse the appellant’s conviction on the conspiracy to sell cocaine charge and remand so that this charge may be stricken from his criminal record. Although we affirm the appellant’s conviction on the possession charge, we also remand for resentencing on that charge because the elimination of the conspiracy conviction may alter the sentence permitted under the guidelines.
Affirmed in part, reversed in part, and remanded with instructions.
DANAHY, A.C.J., and SCHOONOVER and PARKER, JJ., concur.
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State v. Powell, 674 So. 2d 731 (Fla. 1996)…Pearce, adopted the exception. Filer v. State, 285 So. 2d 669 (Fla. 2d DCA 1973); Pearce v. State, 330 So. 2d 783 (Fla. 1st DCA 1976); Cravero v. State, 334 So. 2d 152 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1103 (Fla.1977); Sparkman v. State, 528 So. 2d 497 (Fla. 2d DCA 1988). However, more recently both the Fifth and Eleventh Circuit Courts of Appeals overruled the Herman decision. United States v. Andrews, 850 F. 2d 1557 (11th Cir.1988), cert. denied, 488 U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d 974 (19…
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Register v. State, 585 So. 2d 1146 (Fla. 4th DCA 1991)…demonstrated in this regard. The second appellate point presented relates to the fact that the conviction of Register of conspiracy to traffic in cocaine cannot stand because the only other alleged conspirator has been acquitted. Sparkman v. State, 528 So. 2d 497 (Fla. 2d DCA 1988); Cravero v. State, 334 So. 2d 152 (Fla. 3d DCA 1976); Filer v. State, 285 So. 2d 669 (Fla. 3d DCA 1976). Register and Richard Pickover were jointly charged in Count II of the information for conspiring with each other to traffic…
Authorities Cited
- Filer v. State, 285 So. 2d 669 (Fla. 2d DCA 1973)
- Pearce v. State, 330 So. 2d 783 (Fla. 1st DCA 1976)