CHARLES LAMAR SWITZER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that aggregating cocaine buys over several years is insufficient to support a conspiracy to traffic charge without evidence of intent to purchase 28 grams or more. Additionally, a trial court cannot withhold adjudication when imposing a prison sentence.
[1] Evidence of multiple cocaine purchases over several years, without more, is insufficient to establish intent to purchase 28 grams or more of cocaine for a conspiracy to t…
[2] A trial court may not withhold adjudication of guilt when imposing a prison sentence.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of conspiracy to traffic in cocaine and two counts of possession. The State argued that aggregating the appellant's cocaine bu…
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WOLF, J.
The appellant, following a jury trial, was convicted of conspiracy to traffic in cocaine (count I) and two counts of possession of cocaine (counts II and III). On appeal, the appellant challenges his conviction for conspiracy to traffic in cocaine. Specifically, the appellant asserts the State failed to present sufficient evidence demonstrating his intent to purchase 28 grams or more of cocaine over the course of several years. In response, the State asserts that aggregating the appellant’s cocaine buys over the course of several years supports the conspiracy to traffic charge.
While we agree that cocaine buys may be aggregated where the defendant specifically intended to purchase a total of more than 28 grams of cocaine at different times, we disagree that sufficient evidence was presented at trial to establish the appellant formed such an intent. All evidence presented below supported a finding that the appellant was merely a user of cocaine who engaged in multiple buys over the course of several years. This is insufficient to support a conspiracy to traffic charge.
In addition, upon review of the record, we note that the appellant’s convictions on counts II and III for simple possession were imposed with adjudication withheld; however, the appellant was sentenced to concurrent prison sentences on all three counts. A trial court may not withhold adjudication if a defendant is given a prison sentence. McClellan v. State, 819 So. 2d 946 (Fla. 2d DCA 2002); State v. Oates, 610 So. 2d 522, 523 (Fla. 2d DCA 1992); State v. Green, 581 So. 2d 1008, 1009 (Fla. 4th DCA 1991); State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989); Fla. R.Crim. P. 3.670.
On remand, we direct the trial court to reverse the appellant’s conviction on count I and enter a conviction for the lesser included offense of conspiracy to sell, manufacture, or deliver cocaine. As to counts II and III, we further reverse the appellant’s sentences and direct the trial court to resentence the appellant on all counts.
REVERSED.
PADOVANO and THOMAS, JJ, concur.
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Pallin v. State, 965 So. 2d 1226 (Fla. 1st DCA 2007)…riod. Because each transaction involved less than 28 grams of cocaine, and no evidence established a specific agreement to purchase more than 28 grams of cocaine, we- reverse his conviction for conspiracy to traffic in cocaine. See Switzer v. State, 940 So. 2d 1248 (Fla. 1st DCA 2006). However, because we find that the State proved beyond a reasonable doubt that Appellant conspired to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)l., Florida Statute…
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Dep't OF Corr. v. State of Fla. & Jeverious Franklin, 113 So. 3d 950 (Fla. 5th DCA 2013)…hether the sentence is pursuant to the Florida Youthful Offender Act1 or otherwise, to withhold adjudication of guilt when sentencing a defendant to the Department of Corrections. State v. Dishman, 5 So. 3d 773 (Fla. 4th DCA 2009); Switzer v. State, 940 So. 2d 1248 (Fla. 1st DCA 2006); State v. Davis, 721 So. 2d 1243 (Fla. 4th DCA 1998); State v. Oates, 610 So. 2d 522 (Fla. 2d DCA 1992). Based upon the resentencing, the State asserted that the issue had become moot. Ordinarily, we would agree and dismiss the…
Authorities Cited
- State v. Scarantino, 543 So. 2d 399 (Fla. 4th DCA 1989)
- Square D Co. v. State Farm Fire & Cas. Co., 610 So. 2d 522 (Fla. 3d DCA 1992)
- State v. Oates, 610 So. 2d 522 (Fla. 2d DCA 1992)
- Tyler v. State, 581 So. 2d 1008 (Fla. 3d DCA 1991)
- State v. Green, 581 So. 2d 1008 (Fla. 4th DCA 1991)
- McCLELLAN v. State, 819 So. 2d 946 (Fla. 2d DCA 2002)