M.S., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a defendant's convictions for selling a counterfeit controlled substance. The court rejected arguments that the evidence was insufficient and that the defendant was denied his right to present a defense and counsel.
Yes, the evidence was sufficient because there was evidence the substance was counterfeit. No, the defendant was not denied his rights because his counsel acquiesced in the trial court's procedure.
[1] Evidence of a controlled substance can support a conviction for selling a counterfeit controlled substance if other evidence establishes the substance was counterfeit.
[2] A defendant's argument that evidence was not shown to be competent is not preserved for appeal if not raised at trial.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We disagree with defendant’s contention that because there was evidence that the substance he sold to undercover officers was a controlled substance rather than a counterfeit controlled substance, the evidence was insufficient to exclude his reasonable hypothesis of innocence.”
Establishes the court's rejection of the defendant's sufficiency of evidence argument.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of selling a counterfeit controlled substance. He argued on appeal that the evidence was insufficient because the substanc…
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LEHAN, Judge.
We affirm defendant’s convictions for sale of a counterfeit controlled substance.
We disagree with defendant’s contention that because there was evidence that the substance he sold to undercover officers was a controlled substance rather than a counterfeit controlled substance, the evidence was insufficient to exclude his reasonable hypothesis of innocence. There was other evidence that the substance was a counterfeit controlled substance which provided sufficient basis for the trier of fact to exclude defendant’s hypothesis of innocence. See Benson v. State, 526 So. 2d 948, 955 (Fla. 2d DCA), review denied, 536 So. 2d 243 (Fla.1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989).
Defendant’s argument on appeal that that evidence was not shown to be competent was not preserved for appeal. See Jennings v. Stewart, 308 So. 2d 611 (Fla. 3d DCA 1975). We also disagree with defendant’s contention that he was denied the right to present a defense and the right to counsel when the trial court found him guilty following the close of the state’s case immediately after denying his motion for judgment of acquittal. Defense counsel did not then object or in any other way indicate an intention to present testimony or to make any additional argument to the court and, in fact, actively participated in discussions with the court following the denial of the motion for judgment of acquittal without mentioning any desire to conduct any further proceedings.
We conclude that defense counsel acquiesced in the procedure followed by the trial court and waived the foregoing rights. See Herring v. New York, 422 U.S. 853, 860, 95 S.Ct. 2550, 2554, 45 L.Ed.2d 593, 599 (1975). See also Willoughby v. State, 203 So. 2d 10 (Fla. 3d DCA 1967); People v. Manning, 174 Cal. Rptr. 625, 628, 120 Cal.App.3d 421, 426 (Cal.Ct.App.1981) (“[a]n examination of the entire record here, leads to the logical conclusion that trial counsel never intended nor desired to argue the case and everyone in the court room knew it.”).
Affirmed.
RYDER, A.C.J., and PARKER, J., concur.
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Authorities Cited
- Herring v. New York, 422 U.S. 853 (U.S. 1975)
- Willoughby v. State, 203 So. 2d 10 (Fla. 3d DCA 1967)
- Benson v. State, 526 So. 2d 948 (Fla. 2d DCA 1988)
- Redwine v. Georgia, 489 U.S. 1069 (U.S. 1989)
- Daniels v. Connecticut, 489 U.S. 1069 (U.S. 1989)
- Jennings v. Stewart, 308 So. 2d 611 (Fla. 3d DCA 1975)