Dydek v. State, 80-1083
| Decision Date | 17 June 1981 |
| Docket Number | No. 80-1083,80-1083 |
| Parties | Gary Todd DYDEK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
Gary Todd Dydek appeals judgments and sentences for possession of cocaine and drug paraphernalia. We affirm the judgment and sentence for possession of cocaine. However, we hold that appellant did not possess the item alleged to be drug paraphernalia with the intent that it be "used for unlawfully administering any controlled substance," as required by section 893.13(3)(a)4, Florida Statutes (1979), and we therefore reverse the judgment and sentence for possession of drug paraphernalia.
Appellant moved to suppress the evidence against him in the trial court, relying in the motion on facts as stated in the deposition of Richard Berry, the arresting officer. At the hearing on the motion, Officer Berry also testified concerning his arrest of appellant. When the trial court denied the motion to suppress, appellant pled nolo contendere to both charges, expressly reserving the right to appeal the denial of his motion to suppress. At that time appellant stipulated that the state could prove a prima facie case on the basis of the evidence before the trial court at the hearing on the motion to suppress. The trial court accepted the nolo pleas, adjudicated appellant guilty of both charged offenses, and sentenced him to eighteen months in prison. This appeal followed timely.
On this appeal appellant raises two issues. We find no merit to the first point, which challenges the denial of the motion to suppress, and therefore affirm the judgment and sentence for possession of cocaine.
Appellant's second point is that the information charging possession of drug paraphernalia was insufficient to charge a crime. We disagree with appellant's contention as stated, but we do hold that the evidence is insufficient to support a conviction of the crime charged; the judgment must therefore be reversed.
The evidence concerning the item alleged to be drug paraphernalia, a gold cigarette case, was that the arresting officer came upon it in the course of a search of appellant's pockets. Inside the case the officer found a spoon, two pipes, and a razor blade. A white powdery substance was also found on these items. Other than appellant's admission of ownership of these items (plus a small bottle containing cocaine, which formed the basis of the cocaine possession charge, and a knife), there was no other evidence concerning the alleged paraphernalia.
The information charged that appellant on February 22, 1980,
did unlawfully possess and have in his control a device, contrivance, instrument or paraphernalia with the intent then and there that said device, contrivance, instrument or paraphernalia be used for unlawfully smoking or using a substance controlled by Chapter 893 of Florida Statutes, said device, contrivance, instrument or paraphernalia being a gold cigarette case, a more particular description of which is to the State Attorney unknown ....
Section 893.13(3)(a), Florida Statutes (1979), provides:
It is unlawful for any person:
....
4. To possess, have under his control, or deliver any device, contrivance, instrument, or paraphernalia with the intent that said device, contrivance, instrument, or paraphernalia be used for unlawfully administering any controlled substance.
Although the information does not track the statute word for word, the language used is sufficient to charge a crime under section 893.13(3)(a)4. The problem is that the evidence clearly indicates, and there is not even any speculation to the contrary, that the cigarette case in question was used only as a...
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