Ashenoff v. State, 79-1960
| Decision Date | 09 December 1980 |
| Docket Number | No. 79-1960,79-1960 |
| Citation | 391 So.2d 289 |
| Parties | Robert ASHENOFF, Anthony Restucci and Douglas Ray Emmons, Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Daniel D. Mazar, South Miami, Charles I. Poole, Miami, for appellants.
Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
Defendants were convicted by a jury of conspiracy to sell cannabis and acquitted of possession with intent to sell cannabis. They now appeal their convictions and sentences 1 contending the evidence failed to support the charge of conspiracy. They also challenge the court's denial of their motions to suppress. We agree that the state failed to establish a conspiracy and reverse.
Officer Green of the Broward County Sheriff's Office, relying on information furnished by a confidential informant, met with Dade County officers in furtherance of an undercover investigation involving the sale of a kilo of cocaine and a quantity of marijuana. Officer Green, his partner, and the confidential informant went to the residence of Herbert Turnbull where they discussed price and quantity of the marijuana. Their discussions were intercepted and recorded by means of a body bug. Officer Green, his partner, the confidential informant, and Turnbull then proceeded to another location where they discussed with two other people, Burkley and Burnsed, the purchase of 500 pounds of marijuana and a quantity of cocaine. These conversations were also recorded. Next, Officer Green, his partner, Turnbull, Burnsed, Burkley, and the confidential informant went to defendant Restucci's residence. There, Officer Green discussed cocaine with Burnsed and marijuana with another person, Harapas, and defendant Restucci. Defendants Ashenoff and Emmons arrived and also discussed marijuana, but money was not mentioned and no arrangements were made. Emmons talked about the best type of transportation and Ashenoff discussed the marijuana's ultimate destination.
Officer Green and his partner left defendant Restucci's home and followed a car occupied by Burnsed, Ashenoff, and Emmons to Palazzo's residence where Burnsed indicated the marijuana would be purchased. Defendant Restucci stayed behind at his home. Palazzo led Officer Green, Green's partner, Burnsed, and Ashenoff outside to a truck which Palazzo opened to reveal a large quantity of marijuana. Defendant Emmons had remained inside the house. Palazzo, Burnsed, and Officer Green selected and weighed the bales of marijuana and handed them to Ashenoff outside the truck. At this point, the police arrived. Although others were arrested, only Ashenoff, Emmons, and Restucci are parties to this appeal.
The jury returned verdicts finding defendants guilty of conspiracy to sell cannabis, but acquitting them of manufacture or possession with intent to sell, manufacture or deliver cannabis.
Applying the guidelines enunciated in prior cases on this issue, we examine the evidence. Testimony discloses that defendant Restucci discussed marijuana with Officer Green and made a phone call which was not overheard. He did not participate directly in the arrangements but did direct the undercover police officers and confidential informant to the Palazzo house. He did not accompany them.
Defendant Emmons talked with Officer Green regarding the best type of vehicle to use to transport the marijuana. He drove to Palazzo's residence where he engaged in a conversation with defendant Ashenoff, Burnsed, and Palazzo, which Officer Green could not hear. Emmons stayed inside the house and did not accompany the other men when they went outside to the truck.
Defendant Ashenoff joined in the marijuana-related discussions with Officer Green. He also drove to Palazzo's residence, joined in the discussion there, which Officer Green could not hear, and accompanied Officer Green, Palazzo, and Burnsed to the truck where he helped unload the marijuana bales.
These acts may well have presented a prima facie case of aiding and abetting in the offense of possession with intent to distribute marijuana, but they do not establish the crime of conspiracy. Conspiracy under Section 777.04(3), Florida Statutes (1977) is defined as an express or implied agreement or understanding between two or more persons in order to accomplish a criminal offense. Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979); see e. g., State v. Burkett, 344 So.2d 868 (Fla. 2d DCA 1977); § 777.04(3), Fla.Stat. (1977); 16 Fla.Jur.2d Conspiracy § 1547 (1979). Both an agreement and an intention to commit the offense are necessary elements. King v. State, 104 So.2d 730 (Fla.1958). Although proof of a conspiracy may be inferred from appropriate circumstances, Resnick v. State, 287 So.2d 24 (Fla.1973); Manner v. State, 387 So.2d 1014 (Fla. 4th DCA 1980), and proof of a formal agreement is not necessary, Borders v. State, 312 So.2d...
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...there was no evidence to show the existence of a conspiracy under subsection 777.04(3), Florida Statutes (1989). See Ashenoff v. State, 391 So.2d 289, 291 (Fla. 3d DCA 1980). The convictions for conspiracy are The next question is whether there is sufficient evidence to sustain Coley's conv......
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