NORMAN ENGLISH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Norman English was convicted of possession and delivery of marijuana after a jury trial. The appellate court reversed the delivery conviction due to the trial court's erroneous denial of English's motion to compel disclosure of a confidential informant's identity, which was material to his entrapment defense, but affirmed the possession conviction and remanded for proper sentencing.
The court held that the trial court erred in denying the motion to compel disclosure because the confidential informant's testimony was material to English's entrapment defense on the delivery charge. The informant's testimony could have corroborated that English was reluctant and sold only after repeated requests. Entrapment was not a defense to possession, so the error only affected the delivery count.
[1] The state's privilege of nondisclosure of a confidential informant's identity can be overcome when the accused demonstrates a need for the informant's testimony to suppor…
[2] The defense of entrapment is available when a defendant commits an offense solely due to the inducement or enticement of law enforcement.
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Join FLexlaw to unlock all legal intelligence“It is well established in our jurisprudence that the state has a privilege of nondisclosure of a confidential informant's identity until an accused can show why an exception should be invoked.”
Establishes the general rule protecting confidential informant identity while recognizing exceptions
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Join FLexlaw to unlock all legal intelligenceDetective Meinhardt conducted an undercover purchase of marijuana from English based on information from a confidential informant who was present duri…
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BOARDMAN, Judge.
The appellant, Norman English, was charged in a two-count information with possession and delivery of marijuana. During discovery the appellant learned that information leading to the purchase of marijuana by one, Detective Meinhardt, and the subsequent arrest came from a confidential informant, and that the same informant was present during the transaction which forms the basis of the crimes charged. The appellant filed a motion to compel disclosure of the identity of the confidential informant on the ground that her testimony was essential to his defense of entrapment. The motion was denied and the case proceeded to trial.
A trial by jury resulted in verdicts of guilty as charged on both counts. English was sentenced to a term of three years imprisonment with credit for time served. This timely appeal followed. It is well established in our jurisprudence that the state has a privilege of nondisclosure of a confidential informant’s identity until an accused can show why an exception should be invoked. Treverrow v. State, Fla.1967, 194 So. 2d 250; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
A review of the record clearly shows sufficient facts to justify the application of an exception. As stated above, appellant relied on the defense of entrapment. Our sister court in the case of Dupuy v. State, Fla.App.3d, 1962, 141 So. 2d 825, held the defense of entrapment is available where the person charged with a criminal offense had no intention of committing it but for the inducement, enticement or investigation of an officer of the law.
The defendant, testifying in his own behalf, stated, in essence, that he was reluctant to sell the marijuana and that he had never previously sold the contraband. He further testified that the confidential informant, known to him only as Danielle, was present at all times pertinent and actively participated in the conversation which resulted in the sale of the marijuana by appellant to the undercover agent, Meinhardt. For aught appears the testimony of the confidential informant might very well have corroborated the appellant’s contention that he was reluctant to make the sale and did so only after repeated request had been made upon him by the confidential informant and the undercover agent and that he sold the marijuana only to get rid of both of them.
Obviously, under s,aid factual circumstances, the testimony of the confidential informant would have been very material to prove appellant’s entrapment defense to the charge of delivery. Entrapment was not a defense to possession, so the error would not relate to that charge.
Lastly, both of the offenses charged arose out of the same episode. We cannot ascertain from the record whether appellant was sentenced on Count One, Count Two, or both. However, it is generally presumed that such a sentence attaches to the highest offense charged — in the instant case, delivery, as charged in the first count. Edmond v. State, Fla.App.2d, 1973, 280 So. 2d 449, cert. den, Fla.1973, 287 So. 2d 690. Our decision to reverse the delivery count prohibits the judgment and sentence on Count One to stand. Accordingly, we remand to the trial court with directions to appropriately sentence appellant on Count Two, the possession charge.
Affirmed as to Count Two and remanded for proper sentencing on said count. Reversed and remanded for appropriate proceedings as to Count One.
McNULTY, C. J, and GRIMES, J, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Munford v. State, 343 So. 2d 67 (Fla. 2d DCA 1977)…mant would be valuable and material to appellant’s defense. Appellant could use the informant’s testimony to establish the defense of entrapment or to corroborate evidence of entrapment appellant may wish to testify to himself. See English v. State, 301 So. 2d 813 (Fla.2d DCA 1975). Nonetheless in attempting to apply the Roviaro test to the case before us we are in the same position as confronted the United States Court of Appeals, Fifth Circuit, in United States v. Fischer, 531 F. 2d 783 (5th Cir. 1976), wh…
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Beasley v. State, 354 So. 2d 934 (Fla. 2d DCA 1978)…d a nolo contendere plea, reserving the right to appeal the denial of the motion. At the outset, we need not consider the issue as it relates to the two convictions for possession because entrapment is not a defense to possession. English v. State, 301 So. 2d 813 (Fla. 2d DCA 1974). With respect to the two sale convictions, the allegations of fact in the motion were very similar to those in Munford v. State, 343 So. 2d 67 (Fla. 2d DCA 1977), in which this court held that in response to a pretrial motion, the…
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State v. Carnegie, 472 So. 2d 1329 (Fla. 2d DCA 1985)…ose testimony Carnegie would be denied the right to examine his accuser. Carnegie’s unembellished contentions are insufficient to satisfy his burden. This court’s decisions in Smith v. State, 318 So. 2d 506 (Fla. 2d DCA 1975), and English v. State, 301 So. 2d 813 (Fla. 2d DCA 1974), are not incompatible with our resolution of this matter. The record in Smith disclosed that without the informant’s identity, the defendant would have been precluded from attempting to prove that he was a bystander not involved i…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roviaro v. United States, 353 U.S. 53 (U.S. 1957)
- Westberry v. Daves Auto Parts, 194 So. 2d 250 (Fla. 1967)
- Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)
- Dupuy v. State, 141 So. 2d 825 (Fla. 3d DCA 1962)
- State v. Ellis Edmund, 287 So. 2d 690 (Fla. 1973)
- State v. Marion, 287 So. 2d 690 (Fla. 1973)