LUIS QUINONEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Luis Quinonez appealed his convictions for conspiracy to traffic in cocaine and trafficking in cocaine of 400+ grams, as well as certain probation conditions. The court reversed the conspiracy conviction due to insufficient evidence of an agreement, affirmed the trafficking conviction, and struck one probation condition that lacked statutory authorization.
The conspiracy conviction must be reversed because proof of involvement in the substantive trafficking offense does not establish participation in a conspiracy absent evidence of an agreement and intention to commit the offense. The trafficking conviction is affirmed as supported by sufficient evidence. Condition of probation (6) must be struck because it is not statutorily authorized and was not pronounced orally at sentencing, while condition (9) is valid under section 948.03(1)(c), Florida Statutes.
[1] Proof of involvement in a substantive offense does not, by itself, establish participation in a conspiracy to commit that offense.
[2] A conviction for conspiracy requires evidence of an agreement and an intention to commit the offense.
Previewing 2 of 5 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“Proof of involvement in the substantive offense, however, does not establish participation in the conspiracy to commit that offense.”
Establishes the legal principle that a conspiracy conviction requires separate proof beyond the substantive offense
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Join FLexlaw to unlock all legal intelligenceQuinonez was convicted of conspiracy to traffic in cocaine of 400 or more grams and trafficking in cocaine of 400 or more grams. The trial court impos…
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PER CURIAM.
Luis Quinonez appeals his convictions for conspiracy to traffic in cocaine of 400 or more grams and trafficking in cocaine of 400 or more grams. Quinonez also appeals conditions of probation which the trial court imposed. We reverse the conviction for conspiracy and strike one condition of probation. We affirm the conviction for trafficking.
The state presented sufficient evidence to support the conviction for trafficking in cocaine in the quantity the state charged. Proof of involvement in the substantive offense, however, does not establish participation in the conspiracy to commit that offense. See Garcia v. State, 548 So. 2d 284 (Fla. 3d DCA 1989). In order to uphold a conviction for conspiracy, the evidence must show an agreement and an intention to commit the offense. Saint Louis v. State, 561 So. 2d 628 (Fla. 2d DCA 1990). We have reviewed the entire transcript and conclude that the state failed to present sufficient evidence that Quinonez participated in the conspiracy. We, accordingly, reverse the conviction for conspiracy to traffic in cocaine of 400 or more grams.
Next, Quinonez specifically challenged the following conditions of probation:
(6) You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed or used.
(9) You will submit to urinalysis, breathalyzer or blood tests at any time requested by your Probation Officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs or controlled substances.
Condition (6) is not statutorily authorized, and the trial court did not pronounce it orally at the sentencing hearing. Thus, this court is compelled to remand the order of probation to the trial court with instructions to strike this condition. See Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993) (citing Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)). Condition (9) is statutorily authorized pursuant to section 948.03(1)©, Florida Statutes (1989); therefore, it should not be struck. Quinonez’s objections to other conditions of probation are too general to preserve the issue for appeal.
We reverse the conviction and vacate the sentence for conspiracy to traffic in cocaine and direct the trial court to dismiss that charge. Further, we direct the trial court to strike condition of probation (6). The trafficking charge is affirmed.
RYDER, A.C.J., and PARKER and LAZZARA, JJ., concur.
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Citator
Cited By
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Kanisky Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2008)…that “[c]onduct that aids and abets an offense is insufficient to prove conspiracy.” McClain v. State, 709 So. 2d 136, 137 (Fla. 1st DCA 1998) (citation omitted). See Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994); Quinonez v. State, 634 So. 2d 173, 174 (Fla. 2d DCA 1994); McCants v. State, 587 So. 2d 673 (Fla. 1st DCA 1991); Garcia v. State, 548 So. 2d 284, 285 (Fla. 3d DCA 1989); LaPolla v. State, 504 So. 2d 1353, 1357 (Fla. 4th DCA 1987); Ashenoff v. State, 391 So. 2d 289, 291 (Fla. 3d DCA…
Authorities Cited
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993)
- Ugarte v. Ugarte, 548 So. 2d 284 (Fla. 3d DCA 1989)
- Vilacin Saint Louis v. State, 561 So. 2d 628 (Fla. 2d DCA 1990)