WARREN D. SAMET, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Samet was convicted of felony marijuana possession without proof of the required weight threshold. The appellate court reversed because the state failed to present evidence of the drug's weight, a necessary element of the felony offense, and the trial judge improperly relied solely on visual observation.
No. The trial court erred in finding the defendant guilty of felony possession without evidence proving the requisite weight. The conviction is reduced to a misdemeanor, the only offense for which sufficient evidence exists, and the case is remanded for resentencing accordingly.
[1] A conviction for unlawful possession of marijuana exceeding five grams requires proof of the quantity or weight of the substance.
[2] A trier of fact may not establish the weight or value of an item beyond a reasonable doubt solely by personal observation when such element is essential to the offense ch…
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Join FLexlaw to unlock all legal intelligence“We have been shown no authority by the state to support the proposition that where proof of an offense is dependent upon a showing by the state that the weight of drugs or value of property taken (as upon a charge of grand larceny) that necessary element of the offense may be considered established beyond a reasonable doubt (with no evidence presented thereon) solely by observation of the item or property by the trier of facts.”
Establishes the fundamental legal principle that required elements of an offense must be proven by evidence, not by the judge's observation alone.
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Join FLexlaw to unlock all legal intelligenceSamet was charged with unlawful possession of marijuana in a quantity exceeding five grams, a felony offense. The trial was conducted before the court…
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PER CURIAM.
The appellant was informed against, charged with unlawful possession of marijuana in a quantity exceeding five grams in weight.
The offense charged was a felony under §§ 404.02 and 404.15(1), Fla.Stat., F.S.A. Under said statutes the offense was a misdemeanor, if a first conviction was involved and the quantity possessed was less than five grams in weight.
The cause was tried before the court without a jury. The state failed to present any evidence as to the quantity or weight. The finding of guilt and adjudication by the court did not define or refer to the crime of which the .defendant was found guilty as being either a felony or a misdemeanor. The sentence imposed was confinement for one year in the county jail, which would have been a permissible sentence in either event. See penalty statute referred to in subparagraph (1) of § 404.15 Fla.Stat., F.S.A. In this non-jury trial, when the attorney for the defendant moved the court to treat the matter as a misdemeanor because of absence of evidence as to the weight, the court appears to have proceeded on the basis of a felony, without proof of the weight, stating: “Well, I think I can. It’s in evidence. I can look at it and I can know it’s more than five grams.” We have been shown no authority by the state to support the proposition that where proof of an offense is dependent upon a showing by the state that the weight of drugs or value of property taken (as upon a charge of grand larceny) that necessary element of the offense may be considered established beyond a reasonable doubt (with no evidence presented thereon) solely by observation of the item or property by the trier of facts.
Concededly, there could be instances where the trier of fact could readily conclude that certain property met a weight or value requirement. However, in a case such as this where the matter was questionable, it is essential that the evidence be submitted. It has been so held in cases relating to larceny. See Escobar v. State, Fla.App.1965, 181 So. 2d 193; Suarez v. State, Fla.App.1962, 136 So. 2d 367; and Lambert v. State, Fla.App.1959, 111 So. 2d 68.
Accordingly, as contended for by the appellant, the sentence imposed by the court is set aside. The cause is remanded to the trial court with direction to amend the judgment to designate the offense of which the defendant was found guilty as being a misdemeanor, and for reimposition of sentence thereon as provided for under the appropriate statute.
It is so ordered.
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Purifoy v. State, 359 So. 2d 446 (Fla. 1978)…oceedings not inconsistent with this opinion. OVERTON, C. J., SUNDBERG and ALDERMAN, JJ., concur. HATCHETT, J., dissents. . Purifoy v. State, 342 So. 2d 560 (Fla. 1st DCA 1977). . Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972); Samet v. State, 284 So. 2d 450 (Fla. 3d DCA 1973); Gunn v. State, 336 So. 2d 687 (Fla. 4th DCA 1976). . Fotianos v. State, 329 So. 2d 397 (Fla. 1st DCA 1976). . Art. V, § 3(b)(3), Fla.Const. . This expert’s view was that the “mature stalks” to which the statute refers means on…
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Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977)…02(2), Fla.Stat. . State ex rel. Cooper v. Coleman, 189 So. 691 (FIa.1939); Watson v. Stone, 148 Fla. 516, 4 So. 2d 700 (1941); Newman v. State, 174 So. 2d 479 (Fla.2nd DCA 1965). . Gunn v. State, 336 So. 2d 687 (Fla.4th DCA 1976); Samet v. State, 284 So. 2d 450 (Fla.3rd DCA 1973); and Pope v. State, 268 So. 2d 173 (Fla.2nd DCA 1972), cert disch. 283 So. 2d 99 (Fla.1973).…
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Theo George Fotianos v. State, 329 So. 2d 397 (Fla. 1st DCA 1976)…alks required by Section 893.02(2), Florida Statutes, the amount was so great that it would be impossible to arrive at any conclusion other than the illegal marijuana exceeded five grams. This is an instance mentioned by the court in Samet v. State, 284 So. 2d 450 (Fla.App.3d, 1973), where the trier of fact could readily conclude that a certain property met a weight requirement. Based on the facts ■ previously stated, there was substantial competent evidence to support the conviction of Fotianos. The court…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 111 So. 2d 68 (Fla. 1st DCA 1959)
- Jordan v. State, 136 So. 2d 367 (Fla. 1st DCA 1962)
- Escobar v. State, 181 So. 2d 193 (Fla. 3d DCA 1965)