JAMES LEWIS BOND, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed a cocaine trafficking conviction where the state tested only one of 139 rock cocaine samples, holding that Ross v. State does not require testing each individual rock when rocks are sufficiently similar to pills.
Random testing of one rock cocaine sample from a batch is permissible to establish quantity for trafficking charges, distinguishing rock cocaine from powder cocaine which requires testing each packet.
[1] Random testing of a single rock cocaine sample from multiple rocks is permissible to establish the quantity element of a cocaine trafficking charge, as rock cocaine more…
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Join FLexlaw to unlock all legal intelligenceBond was charged with cocaine trafficking after police seized 139 small plastic bags of rock cocaine; a criminologist tested only one rock and conclud…
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PER CURIAM.
This appeal directs our attention to drug-testing procedures used to prove the quantity of statutorily prohibited substances. We examine those procedures in context with our holding in Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA), review denied, 537 So. 2d 569 (Fla.1988). In Ross, we held that random testing of suspect drugs found within a single packet is permissible as long as each packet is tested. Here, the criminologist received 139 small plastic bags of suspect rock cocaine. He tested one of the 139 different-sized rocks and concluded that the combined rocks contained enough cocaine to violate section 893.135(1)(b), Florida Statutes (1985). The trial court entered a trafficking conviction and sentence, and Bond filed his appeal seeking reduction of the trafficking charge to possession based on the state’s alleged failure to prove the quantity of cocaine. We affirm.
The gravamen of Boss was its recognition that a variety of powdery white substances resemble cocaine in powder form. Rock cocaine, however, more closely resembles pills than powder. Asmer v. State, 416 So. 2d 485 (Fla. 4th DCA 1982). Asmer and Ross approve the random testing of commingled pills. Thus, we hold that Ross does not mandate the testing of each rock of cocaine.
AFFIRMED.
BASKIN and JORGENSON, JJ., concur.
SCHWARTZ, Chief Judge
(specially concurring).
As I have indicated in my specially concurring opinion in State v. Clark, 538 So. 2d 500 (Fla. 3d DCA 1989), I believe that, unlike Clark, this cause involves a principled difference from Ross. This is because there is no innocent substance which could be contained in the untested items possessed by the defendant. Like the piece of material subjected to laboratory analysis, the numerous, identical others were small misshapened “rocks” which no reasonable person could believe contained anything other than what was found in the tested one, cocaine. Since there is thus no danger whatever of misidentification of the remaining substance, I agree that, even following Ross, we should affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Clark, 538 So. 2d 500 (Fla. 3d DCA 1989)…the entire packet or bag contains illegal pills ... is totally distinguishable from the random testing of only one of many separately wrapped packets of suspect cocaine. Ross, 528 So. 2d at 1240 (citations omitted). As we stated in Bond v. State, 538 So. 2d 499 (Fla. 3d DCA 1989), “the gravamen of Ross was its recognition that a variety of powdery white substances resemble cocaine in powder form.” Ross, 528 So. 2d at 1239 (“[A] visual examination of untested packets of this weight is insufficient to convic…1 / 2
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Newsome v. State, 543 So. 2d 465 (Fla. 2d DCA 1989)…ion of the contraband itself but may be proven by other evidence. Dean v. State, 406 So. 2d 1162 (Fla. 2d DCA 1981); Sommers v. State, 404 So. 2d 366 (Fla. 2d DCA 1981); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981); compare Bond v. State, 538 So. 2d 499 (Fla. 3d DCA 1989) (Schwartz, J., specially concurring) (unlike cocaine in powder form, “no innocent substance ... could be contained in the [identical] untested items possessed by the defendant” where tested items were rocks of crack cocaine). Sinc…
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Baron Greenwade v. State, 124 So. 3d 215 (Fla. 2013)…gregate). Cases That Have Not. Applied or Have Distinguished Ross Less than a year after Ross, a defendant was convicted of trafficking in cocaine after police discovered the defendant with 139 small plastic baggies of rock cocaine. Bond v. State, 538 So. 2d 499, 500 (Fla. 3d DCA 1989). Only one of the 139 baggies was tested by the State’s expert, yet the defendant’s conviction was upheld by the Third District. Id. at 500. Relying upon Ross, the district court distinguished rock cocaine from powder cocaine…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1988)
- Safie v. Safie, 416 So. 2d 485 (Fla. 3d DCA 1982)
- State v. Clark, 538 So. 2d 500 (Fla. 3d DCA 1989)