Calabrese v. State, 1D03-4203.
Decision Date | 15 November 2004 |
Docket Number | No. 1D03-4203.,1D03-4203. |
Citation | 886 So.2d 396 |
Parties | Gennaro CALABRESE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Fred Haddad, of Fred Haddad, P.A., Fort Lauderdale, for Appellant.
Charles J. Crist, Jr., Attorney General; and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
An amended information charged Gennaro Calabrese (Appellant) with trafficking in cocaine with Karim Mathew Rauf by unlawfully and knowingly purchasing 28 grams or more, but less than 200 grams, of cocaine or any mixture containing cocaine (Count One); conspiracy with Rauf to traffic in cocaine (Count Two); and possession of cocaine with Rauf with the intent to sell (Count Three). Appellant went to trial on Counts One and Two. The jury found Appellant not guilty as to Count One and guilty as charged as to Count Two. On appeal, Appellant contends that the evidence was insufficient to support the conviction for conspiracy to traffic in cocaine, and that the jury instructions were fundamentally erroneous regarding the conspiracy to traffic count on which he was convicted. Regarding the sufficiency of the evidence and assuming, for the sake of argument, that the specific issue were preserved for appellate review, see Showers v. State, 570 So.2d 377, 378 (Fla. 1st DCA 1990), we conclude that the State presented sufficient evidence to send the case to the jury. However, we find that the trial court fundamentally erred by failing to give the "independent act" special jury instruction in conjunction with the instruction on conspiracy to traffic in cocaine. See Reed v. State, 837 So.2d 366, 368-70 (Fla.2002). Accordingly, we reverse Appellant's conviction and sentence and remand for a new trial.
The State's theory of the case was that Appellant and Karim Rauf had agreed to purchase cocaine from Michael Edelen and had gone to Edelen's apartment, where (at the conclusion of the buy) they were arrested and taken into custody. Appellant concedes that the trial court correctly instructed the jury on the trafficking in cocaine count. The court announced that certain drugs and chemical substances are known by law as "controlled" substances, and that cocaine or any mixture containing cocaine is such a controlled substance. The jury was told that the elements of trafficking are as follows: 1) Appellant knowingly purchased a certain substance; 2) the substance was cocaine; 3) the quantity of the substance was 28 grams or more; and 4) Appellant knew the substance was cocaine. See § 893.135(1)(b)1.a., Fla. Stat. (2001); Concepcion v. State, 857 So.2d 299, 300 (Fla. 5th DCA 2003). The court then instructed the jury on criminal conspiracy:
(Emphasis added). Next, the court instructed the jury on the lesser-included offenses of purchase of cocaine and conspiracy to purchase cocaine.
The trial court gave the "independent act" instruction to the jury as to Count One:
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