GWEN D. GRISSETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gwen Grissett was convicted of purchasing cocaine within 1000 feet of a school, but the Fourth District Court of Appeal reversed her conviction based on due process violations arising from law enforcement's manufacture of cocaine for use in a reverse sting operation. The court found that police manufacturing of cocaine rocks for undercover operations violates constitutional due process principles.
The court reversed the conviction and sentence, finding reversible error in Point III asserting due process violations. Although the constitutional argument was not preserved at trial, the court held that because the issue goes to the foundation of the case and constitutes error so fundamental as to deny due process, it may be considered for the first time on appeal.
[1] Law enforcement's manufacture of cocaine for use in reverse sting operations violates constitutional due process principles.
[2] Fundamental error, such as a denial of due process, may be considered for the first time on appeal even if not preserved below.
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Join FLexlaw to unlock all legal intelligence“the manufacture of cocaine rocks by law enforcement agencies for use by them in reverse sting operations cannot be condoned and 'rises to the level of a violation of the constitutional principles of due process of law.'”
Establishes the court's holding that police manufacturing cocaine for undercover operations violates due process
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Join FLexlaw to unlock all legal intelligenceAppellant Gwen Grissett was charged with purchasing cocaine within 1000 feet of a school in violation of Florida law. The cocaine involved in the case…
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PER CURIAM.
Appellant seeks reversal of her conviction and sentence arising out of charges that she purchased cocaine within 1000 feet of a school in violation of Chapter 893, Florida Statutes (1989).
Several appellate points have been presented, but only one requires any discussion. We find reversible error demonstrated in Point III, which asserts that appellant’s due process rights were violated by the conduct of the police in manufacturing and selling the cocaine involved.
This court has recently held that the manufacture of cocaine rocks by law enforcement agencies for use by them in reverse sting operations cannot be condoned and “rises to the level of a violation of the constitutional principles of due process of law.” Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA 1991). Were that all we have to consider, this case could be disposed of by simply citing Kelly. However, appellee points out that the constitutional argument in this case has not been preserved because it was not made below. Generally, that would be a sufficient ground to hold that the issue was waived, but not if the issue goes to the foundation of the case or goes to the merits of the cause of action. That constitutes error so fundamental that it may be considered for the first time on appeal. Sanford v. Rubin, 237 So. 2d 134 (Fla.1970); D’Oleo-Valdez v. State, 531 So. 2d 1347 (Fla.1988). As the supreme court said in Ray v. State, 403 So. 2d 956, 960 (Fla.1981):
This Court has indicated that for error to be so fundamental that it may be urged on appeal, though not presented below, the error must amount to a denial of due process. Castor v. State, 365 So. 2d 701, 704 n. 7 (Fla.1978). See State v. Smith, 240 So. 2d 807 (Fla.1970).
Accordingly, we have considered appellant’s third point suggesting a lack of due process, based upon the outrageous police conduct in manufacturing the cocaine involved in this case. We reverse the judgment of conviction and sentence herein upon authority of Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA 1992).
The case is remanded to the trial court with directions to discharge appellant.
DOWNEY, ANSTEAD and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Robertson v. State, 605 So. 2d 94 (Fla. 4th DCA 1992)…PER CURIAM. Reversed on the authority of Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA 1992), and Grissett v. State, 594 So. 2d 321 (Fla. 4th DCA 1992). Upon remand the trial court shall enter an order of discharge. REVERSED AND REMANDED. LETTS, J., concurs. ALDERMAN, JAMES E., Senior Justice, and OWEN, WILLIAM C., Jr., Senior Judge, concur specially, with opinion.…
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Palmer v. State, 602 So. 2d 577 (Fla. 4th DCA 1992)…STONE, Judge. We reverse the appellant’s conviction and sentence on the authority of Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA 1992) and Grissett v. State, 594 So. 2d 321 (Fla. 4th DCA 1992). In Kelly, we held that, in a “sting” operation, the use of cocaine rock manufactured by the sheriff without statutory authority violates due process, further mandating the defendant’s discharge. In Grissett, we further held tha…
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State v. Green, 618 So. 2d 294 (Fla. 4th DCA 1993)…lee’s motion to dismiss the information charging him with solicitation to deliver cocaine. The trial court dismissed on the authority of Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA), review denied, 599 So. 2d 1280 (Fla.1992) and Grissett v. State, 594 So. 2d 321 (Fla. 4th DCA), dismissed, 599 So. 2d 1280 (Fla.1992). The trial court found the police had manufactured the crack cocaine used in this transaction and that its use constituted an integral part of the transaction whether charged as purchase of cocai…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA 1992)
- D'Oleo-Valdez v. State, 531 So. 2d 1347 (Fla. 1988)