DAVID PATRICK DURDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2005-05-11
No. 2D03-508
CANADY and VILLANTI, JJ., concur.
901 So. 2d 967 Florida District Court of Appeal, Second District (2005) Positive Treatment
Cited by 21 cases

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Holding

The court held that two convictions for conspiracy to traffic cocaine violated double jeopardy because the evidence demonstrated a single, ongoing conspiracy, not separate offenses.


Headnotes

[1] A single criminal conspiracy exists even if the agreement has as its objective the commission of multiple offenses or repeated violations of law.

[2] The existence of multiple conspiracies, as opposed to a single ongoing conspiracy, depends upon an analysis of the proof adduced at trial.

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Facts & Procedural History

David Patrick Durden was convicted of two counts of conspiracy to traffic cocaine, alleged in separate cases with overlapping timeframes and identical…

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Opinion of the Court
SALCINES, Judge.

SALCINES, Judge.

David Patrick Durden appeals his convictions for two counts of conspiracy to traffic in cocaine, trafficking in cocaine, and attempted trafficking in cocaine. Dur-den asserts for the first time on appeal that fundamental error occurred when he was convicted of two separate charges of conspiracy to traffic in cocaine. Because the two convictions violate the prohibition against double jeopardy, one of those convictions must be reversed and Durden must be resentenced. We, however, affirm the remainder of Durden’s convictions.1

In Pinellas County Circuit Court case CRC93-7740, Durden was charged in a multiple-count information which included one count of conspiracy to traffic in cocaine in excess of 400 grams. The information alleged that the offense was committed between December 1 and 25, 1992. In the subsequently filed Pinellas County Circuit Court case CRC94-832, Durden was charged in a multiple-count information which also included one count of conspiracy to traffic in cocaine in excess of 400 grams. The information alleged that this offense was committed between December 26, 1992, and January 29, 1993. Both in-formations alleged that Durden and the same co-conspirators agreed “to knowingly sell, deliver or to knowingly, actually, jointly, or constructively possess” cocaine weighing more than 400 grams.

A criminal conspiracy is the agreement to commit a criminal act or acts, and if a single agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses. The conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act. Doolin v. State, 650 So. 2d 44, 44-45 (Fla. 1st DCA 1995). As noted in Epps v. State, 354 So. 2d 441, 442 (Fla. 1st DCA 1978), “[a] single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is still one offense, no matter how many repeated violations of the law may have been the object of the conspiracy.” As noted in Aiello v. State, 390 So. 2d 1205 (Fla. 4th DCA 1980), “In essence, the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy.” Id. at 1207 (quoting United States v. Perez, 489 F. 2d 51, 62 (5th Cir.1973)).

In the present case, the possession of the cocaine was not the end of the conspiracy. Both of the informations alleged that the offense included not only the possession of the cocaine, but also the sale and delivery of the substance. See Cam v. State, 433 So. 2d 38, 39 (Fla. 1st DCA 1983). Whether an information properly charges multiple conspiracies or a single ongoing conspiracy depends upon analysis of the proof adduced at trial. Aiello, 390 So. 2d at 1206-07. The burden was upon the State to demonstrate that the original conspiracy was consummated, abandoned, or otherwise terminated by some affirmative act. Cam, 433 So. 2d at 39-40; see also Cummings v. State, 514 So. 2d 406, 408 (Fla. 4th DCA 1987).

The evidence demonstrates that Durden and several other persons had an agree ment to purchase, possess, and sell large quantities of cocaine. As in Cutrell v. State, 560 So. 2d 354, 354 (Fla. 5th DCA 1990), the evidence in the present case establishes that there was one overall conspiracy to traffic in cocaine by co-conspirator(s) making a series of trips to Miami and the cocaine was thereafter distributed in Florida and Georgia. The State failed to demonstrate that the original conspiracy was consummated, abandoned, or otherwise terminated by some affirmative act. See Cam, 433 So. 2d at 39. When a defendant participates in one conspiracy to commit two crimes, he should only be convicted of one conspiracy charge. Cutrell, 560 So. 2d at 354.

Accordingly, Durden’s conviction and sentence in Pinellas County Circuit Court case CRC94-832 for one count of conspiracy to traffic in cocaine in excess of 400 grams is reversed. Durden’s convictions in Pinellas County Circuit Court case CRC93-7740 and the remaining conviction in case CRC94-832 are affirmed. This matter is remanded for the trial court to resentence Durden for the convictions in both cases with a corrected Criminal Punishment Code scoresheet which excludes the conspiracy conviction which has been reversed.

Affirmed in part, reversed in part, and remanded for resentencing.

CANADY and VILLANTI, JJ., concur. . Durden also claims that there was prosecutorial misconduct during opening statement and closing argument and that the trial court abused its discretion regarding the admission of certain testimony. Without further discussion, we have determined that these issues are meritless.


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Citator

Cited By (11 total)

  • Jose N. Negron GIL DE Rubio v. State, 987 So. 2d 217 (Fla. 2d DCA 2008)
    …commit any offense commits the offense of criminal conspiracy....” § 777.04(3), Fla. Stat. (2004). If there is but a single agreement, then there is but a single conspiracy even though it involves the commission of multiple crimes. Durden v. State, 901 So. 2d 967 (Fla. 2d DCA 2005). As the supreme court long ago explained: It is well established that a single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is one offense and a…
  • Nestor Rios v. State, 19 So. 3d 1004 (Fla. 2d DCA 2009)
    …rock cocaine constituted fundamental error that could be raised for the first time on appeal). All of the above cases were available to appellate counsel prior to the filing of the initial brief in the direct appeal. Rios cites to Durden v. State, 901 So. 2d 967 (Fla. 2d DCA 2005), in support of his claim. Durden was charged in one case with conspiracy to traffic in cocaine from December 1 to 25, 1992. He was charged in a second case with conspiracy to traffic in cocaine from December 26, 1992, to January 2…
  • Campbell v. State, 935 So. 2d 614 (Fla. 3d DCA 2006)
    …t exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses. The conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act.” Durden v. State, 901 So. 2d 967, 968 (Fla. 2d DCA 2005) (citing Doolin v. State, 650 So. 2d 44, 44-45 (Fla. 1st DCA 1995)); see Epps v. State, 354 So. 2d 441, 442 (Fla. 1st DCA 1978) (“[a] single conspiracy may have for its object the violation of two or more criminal laws or two…

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