ANTONIO LOPEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1990-01-23
No. 88-1166
Before BASKIN, LEVY and GERSTEN, JJ.
555 So. 2d 1298 Florida District Court of Appeal, Third District (1990)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Antonio Lopez appeals his conviction for trafficking and conspiracy to traffic in cocaine involving 1,784 grams. The appellate court affirmed the conviction but reversed the sentencing, finding the trial court failed to impose a statutorily mandated $250,000 fine.


Holding

The appellate court held that although the prosecutor's comments were improper, they were not sufficiently egregious to require reversal given the totality of the evidence. However, the trial court erred by failing to impose the mandatory $250,000 fine, which the statute requires without discretion.


Headnotes

[1] Prosecutorial comments referring to a defendant as a drug dealer, while improper, do not warrant a new trial if they do not deprive the defendant of a fair and impartial…

[2] A statute mandating a specific fine for a drug trafficking offense is not discretionary and must be imposed by the trial court.

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Key Quotes

“In order for the prosecutor's comments to merit a new trial, the comments must be of such nature: (1) so as to deprive appellant of a fair and impartial trial; (2) materially contribute to his conviction; (3) be so harmful or fundamentally tainted so as to require a new trial; or (4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise.”

Establishes the legal test for determining whether prosecutor misconduct warrants reversal

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Facts & Procedural History

Lopez was arrested for trafficking and conspiracy to traffick in cocaine after arranging for the sale and participating in the delivery of 1,784 grams…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal and cross appeal from a conviction and sentence for trafficking and conspiracy to traffick in cocaine. We affirm in part and reverse in part. Appellant, Antonio Lopez, was arrested for trafficking and conspiracy to traffick after arranging for the sale, and participating in the delivery, of 1,784 grams of cocaine. Although appellant assigns a number of errors to the ensuing trial which resulted in his conviction, we find merit in only one.

We focus on appellant’s contention that the prosecutor made a number of improper comments when he repeatedly referred to the appellant as a drug dealer who was lying on the stand:

“That’s why you did this, because you are a drug dealer.”

“Isn’t it a fact that when he found out that you were a drug dealer, like he was supposed to, he immediately stopped the conversation about buying a car.”

“_neither would these two drug dealers be here but for these confidential sources ...”

In order for the prosecutor’s comments to merit a new trial, the comments must be of such nature:

(1) so as to deprive appellant of a fair and impartial trial;

(2) materially contribute to his conviction;

(3) be so harmful or fundamentally tainted so as to require a new trial; or

(4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise.

See Blair v. State, 406 So. 2d 1103 (Fla.1981); Zamot v. State, 375 So. 2d 881 (Fla. 3d DCA 1979); Smith v. State, 354 So. 2d 477 (Fla. 3d DCA 1978); Oliva v. State, 346 So. 2d 1066 (Fla. 3d DCA 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978); James v. State, 334 So. 2d 83 (Fla. 3d DCA 1976); Darden v. State, 329 So. 2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

A review of the record in the instant case reveals that the comments complained of, although improper, are not sufficiently egregious as to require reversal. Considering the totality of the evidence, these comments did not deprive appellant of a fair trial. See Darden v. State, 329 So. 2d at 291.

The State cross appeals the court’s failure to impose the statutorily mandated fine pursuant to section 893.135(1)(b)3., Florida Statutes (1987). Section 893.-135(1)(b)3., Florida Statutes states:

(b) Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in s. 893.03(2)(a)4. or of any mixture containing cocaine is guilty of a felony of the first degree, which felony shall be known as “trafficking in cocaine.” If the quantity involved:
3. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and tó pay a fine of $250,000.

The language of the statute concerning the mandatory fine neither equivocates nor gives discretion to the trial court in imposing the $250,000 fine. Simply stated, the trial court must follow the statute and impose the mandatory fine. Rosa v. State, 508 So. 2d 546 (Fla. 3d DCA); review denied, 515 So. 2d 230 (Fla.1987). Here, the trial court failed to impose the $250,000 fine as part of appellant’s sentence. Accordingly, we reverse and remand for the imposition of the mandatory $250,000 fine.

Affirmed in part, reversed in part, and remanded.


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