Donaldson v. State, 86-95

• Decision Date: 09 February 1988
• Docket Number: No. 86-95,86-95
• Citation: 519 So.2d 737,13 Fla. L. Weekly 401
• Parties: 13 Fla. L. Weekly 401 Jimmy DONALDSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 737

519 So.2d 737

13 Fla. L. Weekly 401

Jimmy DONALDSON, Appellant, v. The STATE of Florida, Appellee.

No. 86-95.

District Court of Appeal of Florida Third District.

Feb. 9, 1988.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Steven T. Scott, Asst. Atty. Gen., for appellee.

Before HENDRY, BASKIN and FERGUSON, JJ.

BASKIN, Judge.

Defendant Donaldson seeks reversal of his convictions and sentences for burglary of a conveyance and petit theft. We affirm the convictions but vacate the sentences.

In an effort to reduce the number of burglaries of stores and cars occurring in downtown Miami, the City of Miami Police Department conducted a decoy and surveillance operation. Police parked an unmarked white car on the street, leaving the driver's door unlocked and the windows closed. Inside the car, in the rear passenger compartment, were a radio and several pieces of luggage. At approximately 12:15 a.m., from area surveillance posts, police officers observed Donaldson look into several cars, stop at the decoy car, sit on the hood of the car, and survey the street. After waiting for two pedestrians to leave the area, Donaldson opened the driver's door and made a motion consistent with unlocking the rear door. Donaldson closed the driver's door, leaned against the front of the car, and resurveyed the street; he then opened the rear door and removed the radio from the rear of the car. A police officer arrested Donaldson, radio in hand. Subsequent to the arrest, the state charged Donaldson with burglary of a conveyance and petit theft.

Prior to trial, Donaldson filed a motion to dismiss the information, asserting the defense of entrapment. The state filed a traverse specifically denying material facts alleged in the motion. Later, at the close of the state's case, Donaldson moved for a judgment of acquittal. The court denied both motions. The jury found Donaldson guilty as charged, and the court entered adjudications. The sentencing guidelines range was from 12 to 17 years imprisonment; the statutory maximum for the burglary and petit theft counts was 5 years and sixty days, respectively; however, the court enhanced Donaldson's sentences, as authorized by section 775.084, Florida Statutes (1985), and imposed sentences of ten years for the burglary count and time served for the petit theft count. On appeal, Donaldson maintains that under Cruz v. State, 465 So.2d 516 (Fla.), cert. denied 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), the trial court should have found entrapment as a matter of law. We disagree.

In Cruz, the supreme court enunciated the test for determining whether a defendant has been entrapped as a matter of law: "[e]ntrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity." Cruz, 465 So.2d at 522. The first prong of the test examines whether the "police activity seek[s] to prosecute crime where no such crime exists but for the police activity engendering the crime." Cruz, 465 So.2d at 522. The second part of the test focuses on the methods employed by the police officers:

Considerations in deciding whether police activity is permissible under this prong include whether a government agent 'induces or encourages another person to engage in conduct constituting such offense by either: (a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or (b) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than...