CHARLES MICHAEL ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed trafficking conviction and remanded for attempted trafficking conviction because evidence established only an attempted purchase, not an actual purchase, of cocaine.
When a defendant never exercised dominion and control over cocaine and the evidence establishes only an attempted purchase rather than a completed purchase, the conviction must be reduced to attempted trafficking.
[1] When a defendant never exercises dominion and control over cocaine and evidence establishes only an attempted purchase rather than a completed purchase, conviction for tr…
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Join FLexlaw to unlock all legal intelligenceAllen was charged with trafficking in cocaine in the amount of 400 grams or more but less than 150 kilograms. Allen never exercised dominion and contr…
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Charles Michael Allen appeals the judgment entered following a jury’s verdict of guilt for trafficking in cocaine in the amount of 400 grams or more but less than 150 kilograms. Because Allen never exercised even temporary dominion and control over the cocaine, the State’s case rested exclusively on the theory that Allen pur*742chased the cocaine. The evidence was sufficient to establish that Allen attempted to purchase cocaine. However, the evidence was not sufficient to establish that a purchase took place. Accordingly, we reverse and remand for entry of a judgment for the lesser-included offense of attempted trafficking in the amount of 400 grams or more but less than 150 kilograms and for resentencing in conformity therewith. See § 924.34, Fla. Stat. (2007); see also State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (opining that when all of the elements of a lesser-included offense have been determined by the jury, statutory provision that allows an appellate court to reverse a judgment and direct the trial court to enter a judgment for a lesser-included offense “is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense”).
Reversed and remanded.
FULMER and WALLACE, JJ., Concur.
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Harris v. State, 76 So. 3d 1080 (Fla. 2d DCA 2011)…t find that someone prevented Harris from committing the [*1083] robbery in count one or that he failed to commit the robbery. Therefore, the jury did not find beyond a reasonable doubt that Harris committed an attempted robbery. Cf. Allen v. State, 18 So. 3d 741, 742 (Fla. 2d DCA 2009) (reversing trafficking in cocaine conviction that was based on the State’s theory that the defendant purchased cocaine and directing judgment for attempted trafficking when the evidence established the attempt but was insuffi…
Authorities Cited
- State v. Sigler, 967 So. 2d 835 (Fla. 2007)