RONALD PALMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Palmer's conviction was reversed based on the authority of Kelly v. State, which held that law enforcement's use of cocaine manufactured without statutory authority in a reverse sting operation violates due process. The court rejected the state's attempts to distinguish the case and recertified a constitutional question to the Florida Supreme Court.
The court reversed Palmer's conviction and sentence, holding that law enforcement's use of cocaine rock manufactured without statutory authority in a reverse sting operation violates due process and mandates the defendant's discharge. The distinctions offered by the state—that the manufactured cocaine contained no toxic additives and no drugs were lost to the streets—are insufficient to create an exception to the Kelly rule.
[1] The use of cocaine rock manufactured by law enforcement without statutory authority in a "sting" operation violates due process and mandates the defendant's discharge.
[2] The use of manufactured cocaine rock by law enforcement in a "sting" operation constitutes fundamental error when it appears in the record, even if not raised at trial.
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Join FLexlaw to unlock all legal intelligence“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”
States the core holding from Kelly v. State that controls reversal of Palmer's conviction
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Join FLexlaw to unlock all legal intelligencePalmer was charged in connection with a reverse sting operation in which law enforcement used a cocaine rock. The state manufactured this cocaine rock…
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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 that such an event constituted fundamental error mandating the application of Kelly when it appeared in the record but was not raised at trial, or on appeal prior to Kelly.
In Williams v. State, 593 So. 2d 1064 (Fla. 4th DCA 1992), we certified the following question to the supreme court:
DOES THE SOURCE OF ILLEGAL DRUGS USED BY LAW ENFORCEMENT PERSONNEL TO CONDUCT REVERSE STINGS CONSTITUTIONALLY SHIELD THOSE WHO BECOME ILLICITLY INVOLVED WITH SUCH DRUGS FROM CRIMINAL LIABILITY?
Here, the state attempts to distinguish Kelly and revisit Grissett, noting that there is testimony in the record, not present in Kelly, that the sheriff’s department used its manufactured cocaine rock, rather than confiscated rock, because its cocaine contained no toxic additives. The state argued at trial:
Using the street cocaine that we’ve seized, it can be cut with many different things, including arsenic or things of this nature.
If a defendant should for some reason swallow these [street] drugs, then his life is much more in jeopardy than if he had just ingested the crack on its own. The crack cocaine that’s manufactured is pure — made from pure cocaine and there are no additives.
The state also argues that here no drugs were “lost” to the streets. However, we do not consider these distinctions a sufficient basis for an exception to Kelly, as clearly the result in Kelly is based on the issue of illegality and not on the escape of a portion of the drugs into the community. Obviously, concern for the loss of some of the drugs to the streets applies equally to those drugs which were legally confiscated and used in a “sting” operation, as well as to those illegally manufactured.
The state also asserts that Kelly and Grissett conflict with State v. Bass, 451 So. 2d 986 (Fla. 2d DCA 1984), which the trial court presumably would have followed prior to Kelly. In Bass, the court reversed a trial court order dismissing charges based on police use, in a sting operation, of marijuana which a federal court previously ordered destroyed. The state argues that if Kelly is simply a change in the law from that recognized in Bass, the defendant must object at trial to preserve the issue. Clearly, such a result would be inconsistent with our holding in Grissett. However, we do note the possible conflict with Bass.
In Kelly, we indicated that this court was unable to resolve the issue en banc. Therefore, we recertify the question certified in Williams and remand for further proceedings. Additionally, we reject the suggestion that we defer ruling, noting that this court has similarly reversed convictions in other appeals on the same authority. E.g., Hamilton v. State, 596 So. 2d 175, (Fla. 4th DCA April 15, 1992).
ANSTEAD and GUNTHER, JJ., concur.
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Nero v. State, 604 So. 2d 550 (Fla. 4th DCA 1992)…594 So. 2d 321 (Fla. 4th DCA 1992), and remand to the trial court with instructions to discharge appellant. As we did in Johnson v. State, 599 So. 2d 1057 (Fla. 4th DCA 1992), Sheffield v. State, 599 So. 2d 1057 (Fla. 4th DCA 1992), Palmer v. State, 602 So. 2d 577 (Fla. 4th DCA 1992), and Williams v. State, 593 So. 2d 1064 (Fla. 4th DCA 1992) , we again certify the following question to the Florida Supreme Court as a question of great public importance: DOES THE SOURCE OF ILLEGAL DRUGS USED BY LAW ENFORCEME…
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State v. Wilson, 604 So. 2d 578 (Fla. 4th DCA 1992)…STONE, Judge, concurring specially. I would certify the same issue certified in Nero v. State, 604 So. 2d 550 (Fla. 4th DCA 1992); Palmer v. State, 602 So. 2d 577 (Fla. 4th DCA 1992), and Williams v. State, 593 So. 2d 1064 (Fla. 4th DCA 1992).…
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Lawler v. State, 609 So. 2d 658 (Fla. 4th DCA 1992)…, this court has routinely recertified the question in Williams, reversed the defendant’s conviction, and remanded to the trial court with directions to discharge the defendant. See Nero v. State, 604 So. 2d 550 (Fla. 4th DCA 1992); Palmer v. State, 602 So. 2d 577 (Fla. 4th DCA 1992); Johnson v. State, 599 So. 2d 1057 (Fla. 4th DCA 1992); Sheffield v. State, 599 So. 2d 1057 (Fla.1992). Given this court’s ruling in Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA), rev. denied, 599 So. 2d 1280 (Fla.1992), that ap…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kelly v. State, 593 So. 2d 1060 (Fla. 4th DCA 1992)
- Williams v. State, 593 So. 2d 1064 (Fla. 4th DCA 1992)
- Grissett v. State, 594 So. 2d 321 (Fla. 4th DCA 1992)
- State v. Bass, 451 So. 2d 986 (Fla. 2d DCA 1984)
- Regueiro v. State, 596 So. 2d 175 (Fla. 4th DCA 1992)
- Hamilton v. State, 596 So. 2d 175 (Fla. 4th DCA 1992)