BRIAN ESSEX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a jury instruction on simple possession of cocaine is mandated when the accusatory pleadings and evidence support it, even if the defendant is charged with trafficking.
The defendant was charged with trafficking in more than twenty-eight grams of cocaine. The trial court denied a requested jury instruction on simple p…
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LETTS, Judge.
The defendant was charged with trafficking in more than twenty-eight grams of cocaine. The requested instruction on simple possession was not given. It should have been and we reverse.
We have sympathy for the trial judge’s ruling. After all, trafficking, under the facts sub judice, is but possession of more than twenty-eight grams of cocaine and it was stipulated that more than twenty-eight grams were involved here. Nonetheless, we must still consider the doctrine of jury pardon and a stipulation as to the amount of the cocaine that was possessed has been held not to constitute a waiver. See Carvalho v. State, 513 So. 2d 1321 (Fla. 3d DCA 1987).
Sub judice, the charge read as follows: [D]id knowingly sell, manufacture, deliver or bring into the State of Florida or was in knowing or actual or constructive possession of cocaine or a mixture containing cocaine in the amount of more than 28 grams but less than 200 grams, contrary to Florida Statute 893.-135(l)(b)l. [emphasis supplied.]
There is no doubt that the allegata included more than trafficking by delivery. Clearly, trafficking by possession was alleged. Further, the defense was entrapment and the probata admittedly showed possession.
Finally, though the actual holding only involved the issue of trafficking by delivery, a very recent case made it quite clear that an instruction on possession is mandated when the accusatory pleadings and the evidence support same. See State v. Daophin, 533 So. 2d 761 (Fla.1988).
REVERSED AND REMANDED.
GARRETT, J., and CARNEY, ROBERT B., Associate Judge, concur.
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Amado v. State, 585 So. 2d 282 (Fla. 1991)…McDonald, judge. We review Amado v. State, 563 So. 2d 736 (Fla. 2d DCA 1990), because of direct conflict with Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the opinion under review. Amado was convicted of trafficking in cocaine. The issue we address is whether the trial court committed reversible err…
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Johnson v. State, 570 So. 2d 1158 (Fla. 5th DCA 1990)…uction on simple possession. We agree that defendant was entitled to an instruction on simple possession as a lesser included offense. See Fla.Std.Jury Instr. (Crim.), Schedule of Lesser Included Offenses (§ 893.13(l)(a), Fla.Stat.); Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989). Appellant also complains of the refusal to allow surrebuttal to the defendant to explain apparently impeaching evidence introduced by the state involving the appellant’s prior criminal record. The trial court took the position…
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Amado v. State, 563 So. 2d 736 (Fla. 2d DCA 1990)…t the jury that simple possession was a necessarily included lesser offense. Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987), review denied, 519 So. 2d 987 (Fla.1988). The Fourth District, however, has taken a different view. In Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989), the defendant was charged with trafficking in cocaine by an information which listed all the alternative methods under section 893.-135(l)(b), as was the defendant here. The parties had stipulated that more than 28 grams of coca…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)
- Reginaldo Carvalho v. State, 513 So. 2d 1321 (Fla. 3d DCA 1987)