JOSEPH FILER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Where a defendant is charged with conspiring with specific, named individuals, and those individuals are acquitted, the defendant's conviction for conspiracy must be reversed.
Appellant and Robert Leonard were charged with conspiring to sell heroin. Leonard was granted a directed verdict of acquittal. Appellant was convicted…
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HOBSON, Judge.
Appellant Joseph Filer and one Robert Leonard were charged by information with conspiring together to commit a felony, to-wit: the sale of heroin. No one else was named in the information as a co-conspirator, nor was it averred that appellant conspired with any unknown persons.
After the State had concluded its case, Leonard’s motion for directed verdict of acquittal was granted. The lower court denied appellant’s motion for directed verdict, and the trial proceeded with appellant being the sole defendant in the case. Pursuant to a jury verdict of guilty, the lower court adjudged appellant guilty and sentenced him to three years imprisonment.
It is not necessary, to sustain a conviction for a conspiracy, that co-conspirators be charged. Ng Pui Yu v. United States, 9th Cir. 1965, 352 F. 2d 626; Feldstein v. United States, 9th Cir. 1970, 429 F. 2d 1092. See DiStefano v. Langston, Fla.1973, 274 So. 2d 533. However, in those cases the defendants were charged with conspiring with other persons, who had not been acquitted. But where the information or indictment alleges that the defendant and other individuals named as co-defendants were the sole perpetrators of the conspiracy, and the other individuals were acquitted, conviction must be reversed. Herman v. United States, 5th Cir. 1961, 289 F. 2d 362; Romontio v. United States, 10th Cir. 1968, 400 F. 2d 618; cf. Lubin v. United States, 9th Cir. 1963, 313 F. 2d 419; United States v. Cabrera, 5th Cir. 1971, 447 F. 2d 956; United States v. Sparrow, 10th Cir. 1972, 470 F. 2d 885.
Appellant’s motion for directed verdict should have been granted.
In view of our holding, it is unnecessary to consider appellant’s remaining points.
The judgment appealed is
Reversed.
MANN, C. J., and LILES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Powell, 674 So. 2d 731 (Fla. 1996)…Although the Herman court gave little justification for a rule requiring consistent verdicts where conspirators are tried together, a few Florida courts, including the First District Court of Appeal in Pearce, adopted the exception. Filer v. State, 285 So. 2d 669 (Fla. 2d DCA 1973); Pearce v. State, 330 So. 2d 783 (Fla. 1st DCA 1976); Cravero v. State, 334 So. 2d 152 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1103 (Fla.1977); Sparkman v. State, 528 So. 2d 497 (Fla. 2d DCA 1988). However, more recently both…
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State v. Russell, 611 So. 2d 1265 (Fla. 2d DCA 1992)…tely. The state charged all eight defendants as conspiring “amongst and between” themselves. A conspiracy conviction for one defendant cannot be sustained where all the other codefendants charged with conspiracy have been acquitted. Filer v. State, 285 So. 2d 669 (Fla. 2d DCA 1973). In this case, however, the state has presented evidence to support a prima facie case against the appellee and two of the other seven codefendants. Thus, the fact that the conspiracy count may have been properly dismissed as to f…
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Pearce v. State, 330 So. 2d 783 (Fla. 1st DCA 1976)…rooks and Pfaff vitiate the very essence of the conspiracy: the combination or agreement of two or more persons. The rule in this jurisdiction was succinctly stated by Judge Hobson, speaking for the Second District Court of Appeal in Filer v. State, 285 So. 2d 669 (Fla.App.2nd 1973), viz: “But where the information or indictment alleges that the defendant and other individuals named as co-defendants were the sole perpetrators of the conspiracy, and the other individuals were acquitted, conviction must be rev…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herman v. United States, 289 F.2d 362 (5th Cir. 1961)
- Feldstein v. United States, 429 F.2d 1092 (9th Cir. 1970)
- Eli Lubin and Glenn M. Tharp, Jr. v. United States, 313 F.2d 419 (9th Cir. 1963)
- NG PUI YU v. United States, 352 F.2d 626 (9th Cir. 1965)
- Romontio v. United States, 400 F.2d 618 (10th Cir. 1968)
- United States v. Sparrow, 470 F.2d 885 (10th Cir. 1972)
- United States v. Augustin Hernandez Cabrera, 447 F.2d 956 (5th Cir. 1971)
- DI Stefano v. Langston, 274 So. 2d 533 (Fla. 1973)