JUAN FILGUEIRAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Filgueiras was convicted of unlawful sale of a narcotic drug based on a bench trial where he stipulated to the sale and relied on an entrapment defense using available tape transcriptions. The appellate court affirmed, rejecting both his entrapment defense and his claim that the State's failure to produce all tapes required dismissal of the charges.
The court held that neither argument had merit. First, the defendant was not an innocent pawn but a drug dealer who was well aware of the consequences of his act, and the informant merely afforded him an opportunity to commit the sale. Second, while the trial judge had discretion to dismiss based on the State's failure to produce all evidence, he did not abuse that discretion, and the defendant cannot now complain about a ruling that he requested.
[1] A defendant who admits to the underlying criminal act may rely on available evidence to support an entrapment defense.
[2] A trial court does not abuse its discretion by proceeding to trial despite the State's failure to produce all potentially exculpatory evidence, especially when the defend…
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Join FLexlaw to unlock all legal intelligence“It appears from the record that the defendant had been a dealer in illicit drugs, was not any innocent pawn, was well aware of the consequences of his act, and all the informant did was afford the defendant an opportunity to make the sale.”
Establishes that entrapment defense failed because defendant was not an innocent person but rather an established drug dealer given an opportunity to continue his regular conduct.
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Join FLexlaw to unlock all legal intelligenceFilgueiras was charged with unlawful sale of a narcotic drug to an informant who was wired for sound or had his telephone conversations electronically…
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PER CURIAM.
Appellant was charged by information with unlawful sale of a narcotic drug. There was considerable preliminary skirmishing by counsel for the defendant attempting to secure evidence in the possession of the State Attorney’s office. The pre-trial discovery disclosed that the sale had been made to an informant; that the informant had been wired for sound or his telephone conversations with the defendant had been electronically intercepted. Although police authorities believed they had delivered all of the transcriptions to the State Attorney’s office, counsel for the defendant [from his discovery] made it appear that the transcriptions that were submitted to him were not the entire transcriptions or tapes made of the several conversations between the informant and the defendant. Apparently some of the conversations were inaudible because of faulty equipment and others may have been negligently misplaced.
When the matter finally came on for trial, it was stipulated that the defendant admitted the sale and would rely on the transcriptions that were then available to support his defense of entrapment, whereupon all the parties having agreed to such a proceeding the trial judge reviewed the transcriptions and the recordings, and found the defendant guilty as charged, thereby rejecting the defense of entrapment.
It appears from the record that the defendant had been a dealer in illicit drugs, was not any innocent pawn, was well aware of the consequences of his act, and all the informant did was afford the defendant an opportunity to make the sale. Koptyra v. State, Fla.App.1965, 172 So. 2d 628; State v. Rouse, Fla.App.1970, 239 So. 2d 79; Brosi v. State, Fla.App.1972, 263 So. 2d 849. Therefore, we find no merit in the first point [that the transcripts themselves entitled the defendant to a judgment of acquittal on the defense of entrapment],
On the second point, the appellant urges the trial court erred in failing to dismiss the information and proceeding to trial, because of the failure of the State to produce all the tapes and transcriptions made between the informant and the defendant. This was a discretionary ruling on the part of the trial judge. Sheridan v. State, Fla.App.1971, 258 So. 2d 43; United States v. Saitta, 5th Cir. 1971, 443 F. 2d 830. And, we do not find that the trial judge abused his discretion in refusing to grant the motion to dismiss. There were other types of sanctions that could have been imposed, such as the failure to permit the State to use any of the transcriptions in support of their case in chief. But, the defendant elected to utilize so much of the tapes and their transcriptions as were available and he cannot now urge error in the court doing what he asked the court to do. Gagnon v. State, Fla.App.1968, 212 So. 2d 337; Bianchi v. State, Fla.App. 1973, 272 So. 2d 8. The trial could have proceeded in a normal course. If the State had attempted to introduce the tapes and their transcriptions, an appropriate objection could have been made and the trial court’s ruling thereupon duly tested. But, as the case proceeded the defendant should not now be heard to urge error in this regard.
Therefore, the final judgment here under review be and the same is hereby affirmed.
Affirmed.
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State v. del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)…233 (Fla. 5th DCA 1981); State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981); accord, United States v. Bockius, 564 F. 2d 1193 (5th Cir. [*608] 1977),2 the appellate court may determine whether this discretion has been abused, see Filgueiras v. State, 291 So. 2d 21 (Fla. 3d DCA), cert. denied, 295 So. 2d 113 (Fla.1974); accord, United States v. Bullock, 551 F. 2d 1377 (5th Cir.1977). Dismissal of an information or indictment is “an action of such magnitude that resort to such a sanction should only be had whe…
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Filgueiras v. State, 295 So. 2d 113 (Fla. 1974)…Certiorari denied. 291 So. 2d 21. ADKINS, C. J., and ROBERTS, ERVIN and OVERTON, JJ., concur. BOYD, J., dissents.…
Authorities Cited
- Koptyra v. State, 172 So. 2d 628 (Fla. 2d DCA 1965)
- Adler v. Copa Corp., 212 So. 2d 337 (Fla. 3d DCA 1968)
- United States v. Saitta, 443 F.2d 830 (5th Cir. 1971)
- State v. Rouse, 239 So. 2d 79 (Fla. 4th DCA 1970)
- Brosi v. State, 263 So. 2d 849 (Fla. 3d DCA 1972)
- Bianchi v. State, 272 So. 2d 8 (Fla. 3d DCA 1973)
- Sheridan v. State, 258 So. 2d 43 (Fla. 4th DCA 1971)