Eric J. Dirga, P.A.

A Florida Trial Attorney

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Evidentiary Issues; Lab Reports

Florida Case Law On Drug Offense Issues

Legal Opinions From The Florida Supreme Court And The District Courts Of Appeal

Last Updated: May 27, 2016

Evidentiary Issues; Lab Reports

Law Enforcement Testimony

Smith v. State, 40 FLW D118 (Fla. 1st DCA, Jan 6, 2015): It was error to admit LEO testimony regarding "what delivering drugs from one person to another typically looks like" since testimony invaded the province of the jury by suggesting the inference to be drawn from the facts.

Jenkins v. State, 1 So.3d 317 (Fla. 3d DCA 2009): It is insufficient evidence when a LEO testifies to what he observed to be a drug deal yet cannot describe what was transferred and no controlled substance was recovered. State must prove nature of substance possessed.

Sinclair v. State, 995 So.2d 552 (Fla. 3d DCA 2008): An experienced LEO may testify to his opinion that the item seized was crack cocaine.

Richards v. State, 37 So.3d 925 (Fla. 4th DCA 2010): LEO testimony that method of storage was consistent with drug dealing was sufficient to overcome JOA. See dissent regarding testing of only one baggie.

Rawlings v. State, 979 So.2d 1238 (Fla. 4th DCA 2008): Expert LEO testifies that amount of controlled substance possessed by defendant was consistent with intent to sell. Circumstantial evidence was sufficient for issue to be submitted to jury.

Lab Reports

Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005): A lab report is not admissible as a business record because it contains testimonial hearsay. Good read on what is testimonial hearsay.

Forbes v. State, 38 So.3d 232 (Fla. 3d DCA 2010): A lab report indicating the substance was cocaine is inadmissible hearsay at a VOP hearing.

Fleming v. State, 82 So.3d 967 (Fla. 4th DCA 2011): Court properly denies JOA for possession of cocaine when lab analyst testifies that tests on pipe revealed the presence of cocaine.

Sale Within 1000 Feet Of Prohibited Location

Moore v. State, 18 So.3d 715 (Fla. 2d DCA 2009): Police testimony regarding weather building was church was insufficient to establish fact for purposes of sale of controlled substance within 1000 feet of a church.

Smith v. State, 949 So.2d 253 (Fla. 4th DCA 2007): Court properly denies JOA for sale of controlled substance within 1000 feet of a park when state introduces photograph of park that establishes existence of park at time of the crime.

Luther v. State, 68 So.3d 384 (Fla. 5th DCA 2011): State failed to show location was a public housing project and charge of sale of cocaine within 1000 feet thereof should be reduced to sale of cocaine.

Search and Seizure

Oldham v. State, 113 So.3d 963 (Fla. 2d DCA 2013): Asking defendant consent to search fire pit did not give authority to law enforcement to search a small plastic case beside fire pit. Search exceeded scope of consent.

Circumstantial Evidence; Sufficiency of Evidence

Nicholas v. State, 47 So.3d 297 (Fla. 2d DCA 2010): Case discusses sufficiency of circumstantial evidence used to establish trafficking amount of controlled substance.

Phillips v. State, 961 So.2d 1137 (Fla. 2d DCA 2007): Court erred in denying JOA for possession with intent to sell when only evidence of intent to sell was the fact that the defendant possessed cannabis parcelled out in ten small plastic baggies. Total amount (26.6 grams) was consistent with personal use.

Spry v. State, 946 So.2d 630 (Fla. 2d DCA 2007): See case detailing LEO testimony exceeding scope of expert testimony when testifying about the amount of a controlled substance being evidence of intent to sell/deliver.

Koy v. State, 944 So.2d 1233 (Fla. 2d DCA 2006): An isolated instance of selling/distributing a controlled substance does not violate s. 893.13(7)(a)(5), Fla. Stat., maintaining building for purpose of keeping or selling drugs.

Reynolds v. State, 74 So.3d 541 (Fla. 4th DCA 2011): Court properly denies JOA in sale of cocaine case where buyer cannot identify seller but LEO can.

Harris v. State, 72 So.3d 804 (Fla. 4th DCA 2011): See case for extensive discussion on circumstantial evidence when it comes to amount of drugs possessed and inference of intent to sell.

Alleyne v. State, 42 So.3d 948 (Fla. 4th DCA 2010): Circumstantial evidence was insufficient to prove intent to sell when defendant had less than 20 grams of cannabis divided into 18 separate baggies.

Valentin v. State, 974 So.2d 629 (Fla. 4th DCA 2008): Evidence that defendant possessed 17 small baggies of cocaine, standing alone, is insufficient to sustain conviction for possession with intent to sell.

Leigh v. State, 967 So.2d 1102 (Fla 4th DCA 2007): A sale is sufficiently complete when defendant delivers money, contraband is presented and defendant samples it.

Aiding and Abetting; Principal Theory; Attempt; Conspiracy

*Sheppard v. State, 996 So.2d 260 (Fla. 2d DCA 2008): When a defendant assists another person in the sale of a controlled substance the defendant is properly convicted of delivery of cocaine as an aider and abetter but not of possession under the principal theory.

Campbell v. State, 935 So.2d 614 (Fla. 3d DCA 2006): The crime of attempted trafficking in a controlled substance does not require that the controlled substance exist.

Schlicher v. State, 13 So.3d 515 (Fla. 4th DCA 2009): See case regarding conspiracy as it relates to drug offenses.

Relevant Evidence

Mosely v. State, 1 So.3d 261 (Fla 4th DCA 2009): When defendant is charged only with possession introduction of evidence indicating the amount of money in defendant's possession is prejudicial and gets reversal. See also Buitrago v. State, 950 So.2d 531 (Fla. 4th DCA 2007).

Morton v. State, 972 So.2d 1088 (Fla. 5th DCA 2008): Testmony from informant that a lot of folks knew the defendant was a drug dealer is sufficiently prejudicial to require a mistrial.

Possession To Dispose of Controlled Substance Defense

Robinson v. State, 57 So.3d 278 (Fla. 4th DCA 2011): Temporary possession of drugs for the purpose of disposing of them does not constitute criminal possession of the drugs. See this case for circumstances that contradict defense.

Ramsubhag v. State, 937 So.2d 1192 (Fla 4th DCA 2006): See this case about circumstances under which a person may take possession of illegal drugs to dispose of them without being guilty of illegal possession.

Lack Of Knowledge Defense

Quick v. State, 46 So.3d 1159 (Fla. 4th DCA 2010): Lack of knowledge of the illicit nature of a substance is an affirmative defense to possession. To invoke defense the defendant must argue lack of knowledge that drug was a controlled substance not that he/she thought the substance was legal.

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