STATE OF FLORIDA, APPELLANT,
v.
LUIS LOPEZ, APPELLEE
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The court held that while the defendant waived a defect in the information and objective entrapment was not established, the state failed to present sufficient evidence of possession.
[1] A defect in an information is waived if not timely objected to, and surplusage that does not prejudice the defense does not justify a judgment of acquittal.
[2] A defendant's claim of failure to properly supervise a confidential informant, standing alone, does not establish objective entrapment or a due process violation.
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Join FLexlaw to unlock all legal intelligenceThe defendant was found guilty of trafficking MDMA by a jury, but the trial court entered a judgment of acquittal. The state appealed this acquittal.…
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TAYLOR, J.
The state appeals the trial court’s entry of a judgment of acquittal after a jury verdict finding the defendant guilty of trafficking in 3,4-Methylenedioxymethamphe-tamine (MDMA). The court based the judgment of acquittal on three alternative grounds: 1) a defect in the information; 2) lack of proof of possession of the drugs; and 3) objective entrapment.
We agree with the state that the defendant waived the defect in the information by failing to timely raise an objection, and, further, that the additional language in the information was mere surplusage which did not prejudice defendant in his defense or otherwise justify a judgment of acquittal. See Fla. R. Crim. P. 3.140®. We also agree that the alleged failure to properly supervise the confidential informant, standing alone, did not amount to a due process violation and establish objective entrapment. See State v. Figuereo, 761 So. 2d 1252, 1255 (Fla. 3d DCA 2000) (reversing dismissal of drug trafficking charge on grounds of entrapment where defendant’s claim of failure to supervise fell short of alleging a due process violation).
We conclude, however, that the trial court correctly found that the state failed to present sufficient evidence to establish that the defendant was in actual or constructive possession of MDMA. See D.M. v. State, 714 So. 2d 1117, 1120 (Fla. 3d DCA 1998) (holding that evidence was legally insufficient to establish that juvenile possessed cocaine which was located in a utility room; a defendant is not guilty of possession of a controlled substance by virtue of aiding and abetting a confederate in the sale of such substance). Although the defendant may have been guilty of conspiracy to sell or deliver MDMA, as indicated by the confidential informant’s testimony, the evidence was legally insufficient to establish that the defendant had dominion or control of the drugs, which were thrown out of his car by the passenger and purported owner/supplier of the drugs.
Affirmed.
WARNER and KLEIN, JJ., concur.
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Deepak Bist v. State, 35 So. 3d 936 (Fla. 5th DCA 2010)…o suggestion that Bist did not voluntarily engage in the conversations or that the transcribed contents are anything but accurate. Further, the mere failure to supervise or monitor Perverted Justice does not violate due process. See State v. Lopez, 908 So. 2d 484, 485 (Fla. 4th DCA 2005) [*941] (holding that “failure to properly supervise the confidential informant, standing alone, did not amount to a due process violation”); State v. Figuereo, 761 So. 2d 1252, 1255 (Fla. 3d DCA 2000) (same). It is a lack of…
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Robinson v. State, 936 So. 2d 1164 (Fla. 1st DCA 2006)…oom. See Thames v. State, 366 So. 2d 1261 (Fla. 1st DCA 1979). Challenging the denial of his motion for JOA on Counts Two and Four, Appellant relies on several decisions that are materially distinguishable on their facts. See, e.g., State v. Lopez, 908 So. 2d 484 (Fla. 4th DCA 2005) (affirming entry of JOA after jury verdict finding defendant guilty of trafficking in drug MDMA, because evidence that passenger, who was purported owner and supplier of MDMA, had thrown MDMA out of defendant’s car was legally in…
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Cline v. State, 958 So. 2d 961 (Fla. 4th DCA 2007)…ing as an undercover agent of law enforcement, and his conduct in pushing the defendant into the transaction was deemed governmental conduct which could not be condoned. Other cases have rejected the objective entrapment defense. In State v. Lopez, 908 So. 2d 484, 485 (Fla. 4th DCA 2005) (citing State v. Figuereo, 761 So. 2d 1252 (Fla. 3d DCA 2000)), we agreed with the state “that the alleged failure to properly [*965] supervise the confidential informant, standing alone, did not amount to a due process viol…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Figuereo, 761 So. 2d 1252 (Fla. 3d DCA 2000)
- D.M. v. State, 714 So. 2d 1117 (Fla. 3d DCA 1998)