ALTON B. ROGERS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alton Rogers was charged with two counts of marijuana possession and two counts of unlawful sale. The trial court found the police engaged in entrapment regarding the sales but convicted Rogers of possession anyway. The appellate court reversed, holding that when police entrapment vitiates the sale charges, the possession charges must also fail because the possessed marijuana was integral to the entrapped sales.
The court held that the entrapment defense prevails and the conviction for possession must be reversed. When police entrapment leads to acquittal on sale charges and the only marijuana at issue is that which was integral to the entrapped sale, the defendant cannot be convicted of possessing that same marijuana.
[1] A defendant acquitted of selling marijuana due to entrapment cannot be convicted of possessing the same marijuana, when the possession was solely incidental to the entrap…
[2] Entrapment requires that the criminal design originate in the minds of government officials who implant the disposition to commit the crime in the defendant.
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Join FLexlaw to unlock all legal intelligence“where a trial court finds the police guilty of unconscionable conduct by entrapping a defendant into acting as a conduit for the sale of marijuana, then the trial court may not, having acquitted the defendant of the sale of marijuana, find him guilty of possession of the same marijuana which he possessed momentarily as an integral part of the sale”
Statement of the appellant's position that the court found well-taken and adopted as the basis for reversal
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Join FLexlaw to unlock all legal intelligenceOn September 24, 1971, police conducted undercover operations resulting in charges against Rogers for selling marijuana to two individuals (Lamkin and…
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On November 8, 1971, the defendant was charged by information with four violations of Fla.Stat. § 404.02, F.S.A. Count I charged the defendant with unlawful sale of marijuana to one C. F. Lamkin on September 24, 1971. Count II charged the defendant with unlawful possession of marijuana on September 24, 1971. Count III charged the defendant with unlawful sale of marijuana to one T. J. Mayo on September 24, 1971. Count IV charged the defendant with unlawful possession of marijuana on September 24, 1971.
The defendant was tried on September 6, 1972 before the court sitting without a jury. The court found that the police entrapped the defendant into making the sales charged in the information, and acquitted the defendant of Counts I and III. However, the court adjudicated the de*839fendant guilty on Counts II and IV which charged possession. This appeal followed.
Appellant urges that where a trial court finds the police guilty of unconscionable conduct by entrapping a defendant into acting as a conduit for the sale of marijuana, then the trial court may not, having acquitted the defendant of the sale of marijuana, find him guilty of possession of the same marijuana which he possessed momentarily as an integral part of the sale. We think that this position is well taken. In the case at bar, the trial court found that the police were guilty of unconscionable conduct. There was no showing that the defendant had any predisposition to possess a felonious quantity of marijuana or to sell any, though he admitted to having used it in the past. The only marijuana that appellant is charged with possessing is the marijuana that was a part of the sale. The State has suggested that additional marijuana was involved but the record does not support such an assertion.
We have reviewed the State’s contention that the record exempts the conviction for possession from the entrapment holding because the record shows appellant’s predisposition to possess marijuana even if it shows that he had no predisposition to sell it. We do not think that this argument is sustainable on the record before us.
The defense of entrapment prevails when the defendant’s criminal design has its origin in the minds of government officials, and the government officials implant the disposition to commit a crime in the defendant’s mind, thereby actively inducing the commission of the crime. In State v. Liptak, Fla. 1973, 277 So.2d 19, filed April 4, 1973, the Supreme Court of Florida stated that “. . . an essential element of the offense of entrapment is inducement by police leading to the commission of the crime by one who otherwise had no intention of committing the crime.” In the case at bar, the record affirmatively shows the essential element of inducement by the police leading to the commission of a crime. Accordingly, the judgment and sentence are reversed and the cause remanded with directions to discharge the appellant.
Reversed and remanded with directions to discharge the appellant.
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Morris v. State, 456 So. 2d 471 (Fla. 3d DCA 1984)…rs under close scrutiny. As to the first suggested proof, this court has previously rejected the. notion that evidence of prior use of an illegal drug evidences a predisposition to possess a felonious quantity of it, or to sell it. Rogers v. State, 277 So. 2d 838 (Fla.3d DCA 1973). A contrary holding, which the state seeks— that the use of cocaine is legal proof of a willingness to traffic in it — would be of doubtful constitutionality, and, as a practical matter, ludicrous. The second suggested proof does…
Authorities Cited
- State v. Liptak, 277 So. 2d 19 (Fla. 1973)