NORRIS EPPS A/K/A GOLDIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Epps was convicted of two separate conspiracy counts and sentenced to consecutive ten-year sentences. The court reversed one sentence, holding that the evidence supported only a single conspiracy to sell heroin, not two distinct conspiracies, and that double jeopardy principles prevent conviction for multiple alleged conspiracies arising from the same criminal conduct.
The court held that the evidence proved only one general conspiracy to sell heroin, not two separate conspiracies. A mere gap in intercepted communications does not establish the termination of one conspiracy and the commencement of another. Therefore, one of the two consecutive sentences must be reversed on double jeopardy grounds.
[1] A conspiracy is presumed to be continuous until consummated, abandoned, or otherwise terminated by some affirmative fact.
[2] The termination of a conspiracy depends upon the particular facts of each case.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the evidence shows only one general conspiracy was involved. It is clear from the testimony of co-conspirator Wilcox that the arrangements for the acquiring and selling of heroin lasted much longer than the months of July and August, 1975”
Establishes that despite the temporal division in the charges, the underlying facts proved continuous single conspiracy rather than distinct conspiracies
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Join FLexlaw to unlock all legal intelligenceEpps was charged with conspiracy to sell heroin in two separate counts: the first with Rosemond and Wilcox between July 19-22, 1975; the second with W…
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ERVIN, Judge.
Epps appeals two consecutive ten year sentences imposed for conspiracy to commit a felony, i. e., the sale of heroin. Epps’ argument that the state failed to establish the existence of two separate conspiracies as alleged in counts one and two of the amended information has merit and requires reversal of one of the two sentences imposed. The first count of the amended information charged that Epps, together with Eddie E. Rosemond and Constance Thomas Wilcox, between July 19, 1975 and July 22, 1975 conspired to commit a felony, i. e., sell heroin. The second count charges Epps and Wilcox, between August 6, 1975 and August 24, 1975, with conspiring to commit the same offense.
Pursuant to successive orders authorizing the interceptions of communications on a telephone owned by Phyllis Hicks, three interceptions occurred between July 19, and July 22,1975, and five interceptions between August 6 and August 24, 1975.
The intercepted communications supporting both counts related to transactions for the sale of separate quantities of heroin.
Nevertheless, the evidence shows only one general conspiracy was involved. It is clear from the testimony of co-conspirator Wilcox that the arrangements for the acquiring and selling of heroin lasted much longer than the months of July and August, 1975, the dates involved in the two counts. It was necessary for the state to prove more than there was simply a gap in the intercepted communications between July 22, 1975 and August 6, 1975 to establish the termination of one conspiracy and the commencement of the other. The general rule is the termination of a conspiracy depends upon the particular facts of each case and that a continuing conspiracy exists “until consummated, abandoned, or otherwise terminated by some affirmative fact.” 15A C.J.S. Conspiracy § 35(2) (1967).
For example, a defendant’s contention that separate conspiracies were involved, so that statements of co-conspirators of conspiracies which he claimed not to be a member could not be introduced into evidence against him, was rejected, the court concluding from the facts that a general conspiracy was involved. United States v. Bastone, 526 F. 2d 971 (7th Cir. 1975), cert. den., 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976).
Similarly, a defendant’s claim was rejected that he could not be convicted of conspiracy to commit kidnapping because his only participation in the offense showed that he had only been involved in exchanging ransom money following a kidnapping. The court held that the conspiracy was continuous and did not terminate until the ransom proceeds were exchanged. McDonald v. United States, 89 F. 2d 128 (8th Cir. 1937), cert. den., 301 U.S. 697, 57 S.Ct. 925, 81 L.Ed. 1352 (1937).
Moreover when a plot contemplates a result which cannot continue without the continuous cooperation of conspirators, and there is such continuous cooperation, the conspiracy is one, not several. United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910).
Even though the evidence reveals sales of different drugs, such fact is unimportant. A single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is still one offense, no matter how many repeated violations of the law may have been the object of the conspiracy. Brown v. State, 130 Fla. 479, 178 So. 153 (1938). The evidence in this cause failed to establish the termination of one conspiracy and the commencement of a separate conspiracy. Epps may not be placed again in jeopardy for the offense of the same criminal conspiracy. Brown v. State, supra, 178 So. at 156. We . have considered Epps’ remaining points and find them without merit. His second consecutive sentence is REVERSED.
MILLS, Acting C. J., and SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Durden v. State, 901 So. 2d 967 (Fla. 2d DCA 2005)…ts objectives the commission of multiple offenses. The conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act. Doolin v. State, 650 So. 2d 44, 44-45 (Fla. 1st DCA 1995). As noted in Epps v. State, 354 So. 2d 441, 442 (Fla. 1st DCA 1978), “[a] single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is still one offense, no matter how many repeated violations of the law may have…
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State v. Bauman, 425 So. 2d 32 (Fla. 4th DCA 1982)…oregoing argument. However, the trial court was bothered by the discussion of when a continuing conspiracy terminated in United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910) (a statute of limitations question) and Epps v. State, 354 So. 2d 441 (Fla. 1st DCA), cert. denied 360 So. 2d 1250 (Fla.1978) (a double jeopardy question). We have attempted to show by this opinion that for the purpose of deciding the two motions which led to the order being appealed viewed in light of what was tender…
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Williams v. State, 383 So. 2d 722 (Fla. 1st DCA 1980)…that the conspiracy began by January 1, 1978. Therefore, evidence as to Larry Williams’ prior participation was properly admitted; once part of the conspiracy, he was liable for all subsequent criminal acts unless he withdrew from it. Epps v. State, 354 So. 2d 441 (Fla. 1st DCA 1978). There was no suggestion of his withdrawal from the conspiracy. See § 777.04(5), Florida Statutes (1977); U. S. v. Wentland, 582 F. 2d 1022 (5th Cir. 1978). Wilson’s convictions must be reversed, however, because he had no part…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Kissel and Harned, 218 U.S. 601 (U.S. 1910)
- McDonald v. United States, 89 F.2d 128 (8th Cir. 1937)
- United States v. Bastone, 526 F.2d 971 (7th Cir. 1975)
- Brown v. State, 130 Fla. 479 (Fla. 1938)
- Owensboro-Daviess Cnty. Hosp., Inc. v. Usery, 425 U.S. 973 (U.S. 1976)
- Bastone v. United States, 425 U.S. 973 (U.S. 1976)
- Girson v. United States, 301 U.S. 697 (U.S. 1937)
- Nitkey v. S. T. McKnight Co., 301 U.S. 697 (U.S. 1937)