STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
MICHAEL A. GILMORE, APPELLEE/CROSS-APPELLANT
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The court held that attempting to swallow contraband without destroying it does not constitute tampering, and that a defendant's addiction and amenability to treatment are valid reasons for a downward sentencing departure.
[1] An attempt to swallow contraband that does not damage or destroy the evidence does not constitute tampering.
[2] A conviction for tampering with evidence may be reversed when the defendant's conduct, at most, amounts to an attempted tampering.
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Join FLexlaw to unlock all legal intelligenceDefendant purchased marijuana in a reverse sting operation and attempted to swallow it when confronted by officers. The jury convicted him of tamperin…
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PER CURIAM.
The state appeals the downward departure sentences imposed on Michael A. Gilmore for tampering with physical evidence, purchase of cannabis, and possession of cannabis with the intent to purchase. The defendant cross-appeals his conviction for tampering. We reverse the conviction for tampering and remand for resentencing.
Mr. Gilmore purchased a $10 bag of marijuana from police officers during a reverse sting operation. When the officers confronted Mr. Gilmore to make the arrest, the defendant placed the bag of cannabis in his mouth. After several demands to relinquish the bag, the defendant spit the bag out of his mouth. The jury found the defendant guilty of tampering, purchase of cannabis, and possession of cannabis with the intent to purchase. The trial court departed downward from the sentencing guidelines and imposed a prison term of one year and one day for tampering, followed by concurrent terms of five years’ probation on the remaining offenses.
In a similar case, this court has held that an attempt to swallow contraband that does not damage or destroy the evidence does not constitute tampering. McKinney v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994). At most, such conduct may be attempted tampering. Accordingly, we reverse Mr. Gilmore’s conviction for tampering. Because the reversal of this conviction will change the appropriate scoresheet, as well as the score, we remand for resentencing.
On resentencing, the trial court may depart downward for the reasons previously utilized. At the sentencing hearing, the trial court determined that Mr. Gilmore suffered from a broken back and procured the contraband to relieve the pain. Although the defendant had a prior record, including several serious felonies, the trial court believed that Mr. Gilmore’s actions were motivated by his addictions and that he was amenable to treatment. This is a valid reason for a downward departure. Herrin v. State, 568 So. 2d 920 (Fla.1990).
Affirmed in part, reversed in part, and remanded.
RYDER, A.C.J., and ALTENBERND and QUINCE, JJ., concur.
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Citator
Cited By
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A.F. v. State, 850 So. 2d 667 (Fla. 4th DCA 2003)…shows that A.F. unsuccessfully attempted to swallow the bag of marijuana before spitting it out. Although this act is insufficient to constitute tampering with evidence, it does amount to attempted tampering with the evidence. See State v. Gilmore, 658 So. 2d 629 (Fla. 2d DCA 1995)(holding that unsuccessful attempt to swallow bag of marijuana does not constitute tampering); McKinney v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994)(holding that evidence that defendant unsuccessfully tried to swallow bag of cocain…
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Morris v. State, 989 So. 2d 753 (Fla. 2d DCA 2008)…red several requests to spit out the bag. Morris continued to physically resist the officer and was eventually tasered. Morris then spit out the bag of cannabis. We conclude that this case is controlled by this court’s opinions in State v. Gilmore, 658 So. 2d 629 (Fla. 2d DCA 1995), and McKinney v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994). In McKinney, 640 So. 2d at 1183-84, the appellant stopped when ordered to do so by police, but he struggled with the officers when they attempted to arrest him, and he th…1 / 2
Authorities Cited
- Herrin v. State, 568 So. 2d 920 (Fla. 1990)
- McKINNEY v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994)