ALLEN RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1997-04-11
No. 95-02217
QUINCE and WHATLEY, JJ., concur.
691 So. 2d 568 Florida District Court of Appeal, Second District (1997) Caution
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Allen Rodriguez was convicted of trafficking in cocaine and challenged his conviction, sentence, and a restitution order. The Florida District Court of Appeal affirmed his conviction and sentence but struck the restitution order because it was directed to a police agency, which does not qualify as a 'victim' under the restitution statute.


Holding

The detective's testimony was properly admitted because defense counsel invited the error by opening the line of inquiry. Rodriguez was correctly sentenced under the 1993 statute because his offense was completed on December 31, 1993, not in 1994. The restitution order must be struck because it was directed to the Sheriff's Department, which does not meet the statutory definition of 'victim.'


Headnotes

[1] A defendant cannot claim error in the admission of evidence that was elicited by their own counsel's questioning.

[2] A criminal offense is considered complete at the time the parties agree to the transaction, regardless of subsequent payment or delivery.

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Key Quotes

“any error here was invited by defense counsel when he opened the door to the line of inquiry”

Establishes that the detective's testimony regarding cocaine found in the residence was properly admitted under the invited error doctrine because defense counsel's own questioning prompted it.

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Facts & Procedural History

Rodriguez engaged in a cocaine transaction with a confidential informant (C.I.) on December 31, 1993. The C.I. made an initial successful purchase and…

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Opinion of the Court
CAMPBELL, Acting Chief Judge.

CAMPBELL, Acting Chief Judge.

Appellant, convicted of trafficking in cocaine, challenges his conviction, his sentence and the order requiring him to pay $1,900 in restitution to the Sarasota Sheriffs Department. We conclude that any error in allowing the detective to testify that he had subsequently discovered cocaine in appellant’s residence was invited by defense counsel’s question. We further conclude that appellant was properly sentenced under the 1993 statute and that, although appellant waived the issue of restitution by failing to raise it below, the restitution award must be stricken because it was ordered to be paid to the sheriffs department, which is not a victim under the statute.

an attempt to show that appellant had been entrapped by the C.I. at the initial buy, defense counsel asked the C.I. if he had attempted to purchase cocaine from appel-appelat any time after the C.I. had made the initial successful buy. The C.I. replied that he had made several unsuccessful attempts. On rebuttal, the state called Detective Gra-Grawho testified that when he arrested appellant in July, six months after the initial buy, he found cocaine in the house.

Defense counsel clearly initiated this line of questioning. Counsel’s question was intended to elicit a response tending to show that appellant only had cocaine on the one occasion of the initial buy, thus bolstering the defense position that appellant had been entrapped by the C.I. at the initial buy. However, defense counsel failed to anticipate the state’s rebuttal in the form of the detective’s testimony that he had found cocaine inside appellant’s residence several months after the initial buy. We conclude that any error here was invited by defense counsel when he opened the door to the line of inquiry. See Ellison v. State, 349 So. 2d 731 (Fla. 3d DCA 1977).

has also challenged his sen-senarguing that he should have been sen-senunder the 1994 version of the statute (effective January 1, 1994), not the 1993 ver-verbecause his offense was not complete until 1994, when the C.I. paid him for the cocaine.

The court, however, correctly sentenced appellant under the 1993 version of the statute, which provides that the offender is to be sentenced to a mandatory minimum three-year term. § 893.135, Fla.Stat. (1993). The 1994 version provides that the offender is to be sentenced pursuant to the guidelines. § 893.135, Fla.Stat. (Supp.1994); 1993 Fla. Laws ch. 93-406 (effective January 1, 1994).

The statutes are clear. The new statute applies only to offenses committed after January 1, 1994. Appellant’s offense was completed December 31, 1993. As the state observes, appellant merely “fronted” or loaned the money to the C.I. on December 31,1993. The money was owed as of that date. The deal was completed as of that date. This is analogous to a civil loan situation. The fact that money is not paid immediately does not negate the fact that it must be paid. The contract is complete as of the time both parties agree. Concluding as we do that appellant’s offense was completed on December 31, 1993, we must conclude that the trial court was correct in sentencing appellant under the 1993 version of the statute.

appellant has waived his challenge to his restitution order by failing to raise it below, we conclude that the error is fundamental and that the order must be stricken because it is an illegal order since it is ordered to be paid to the Sheriff’s Depart-Departand police agencies do not meet the statutory definition of “victim.” See Knaus v. State, 638 So. 2d 156 (Fla. 2d DCA 1994); § 775.089(1), Fla.Stat. (1993). Accordingly, we strike the $1,900 restitution order. Ap- pedant’s conviction and sentence are otherwise affirmed.

QUINCE and WHATLEY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Noland v. State, 734 So. 2d 464 (Fla. 5th DCA 1999)
    …t significantly related to crime to which employee was convicted). The error here is fundamental in nature in that the defendant was ordered to pay restitution for items entirely outside the scope of the criminal prosecution. See Rodriguez v. State, 691 So. 2d 568 (Fla. 2d DCA 1997) (fundamental error to order restitution to sheriffs department as it does not meet statutory definition of “victim”). In State v. Williams, 520 So. 2d 276 (Fla.1988), the supreme court stated that to order restitution under the s…
  • Lewis v. State, 874 So. 2d 18 (Fla. 4th DCA 2004)
    …“Sheriff of Broward County Restitution Fund-BSO Finance Division.” Because the sheriffs office does not meet the statutory definition of “victim” it is fundamental error to order restitution to be paid to the sheriffs office. See Rodriguez v. State, 691 So. 2d 568, 569 (Fla. 2d DCA 1997) (citations omitted). Although in some cases a government agency may be a conduit for directing restitution money to the ultimate victim, see Seidman v. State, 847 So. 2d 1144, 1146 (Fla. 4th DCA 2003), there is no evidence in…
  • Rohit K. SAM (Seam) v. State, 741 So. 2d 1247 (Fla. 2d DCA 1999)
    …fraud claim against Mr. Sam. The State concedes error. We reverse because the Florida Department of Insurance is not a “victim” as that term is used in the restitution statute, section 775.089(l)(c), Florida Statutes (1997). See Rodriguez v. State, 691 So. 2d 568, 569 (Fla. 2d DCA 1997); Staudt v. State, 616 So. 2d 600 (Fla. 4th DCA 1993). The amounts assessed in this case are in the nature of costs of prosecution. Although this record suggests that Mr. Sam does not have the financial ability to pay such cos…

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