Kimmons v. State

• Citation: 322 So.2d 36
• Decision Date: 10 October 1975
• Docket Number: No. Y--35,Y--35
• Parties: Winifred KIMMONS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 36

322 So.2d 36

Winifred KIMMONS, Appellant, v. STATE of Florida, Appellee.

No. Y--35.

District Court of Appeal of Florida, First District.

Oct. 10, 1975.

Rehearing Denied Dec. 2, 1975.

Joe J. Harrell of Harrell, Wiltshire, Bozeman, Stone, Swearingen & Hart, Pensacola, for appellant.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

SMITH, Judge.

Kimmons appeals from a judgment and prison sentence entered on a jury verdict of his guilt on a charge that he delivered a barbiturate in violation of § 893.13(1)(a), F.S. 1973. Kimmons urges on appeal that his entrapment defense was established as a matter of law.

The issue is whether the evidence viewed most favorable to the State demonstrates that, at a time when appellant Kimmons had no intention to deliver drugs, agent Cardwell induced Kimmons to commit the crime by offering and paying Kimmons eighteen dollars for six capsules of a barbiturate. If at the time of the encounter Kimmons already had the intent and predisposition to commit and offense of the character charged, his conviction will not be vitiated by Cardwell's conduct furnishing an opportunity to commit the offense. See Lashley v. State, 67 So.2d 648 (Fla.1953); Spencer v. State, 263 So.2d 282 (Fla.App.1st, 1972).

On December 1, 1973, agent Cardwell approached Kimmons pursuant to plan and asked to buy drugs. Cardwell and other agents had previously received information from a number of sources, particularly two fifteen year-old girlfriends of Kimmons' daughter, that Kommons had delivered drugs to minors. One of the young girls told the agents and later testified that Kimmons furnished her drugs and on one occasion took sexual liberties with her while she was under the influence of the drugs.

After Kimmons and Cardwell talked about buying and selling drugs on December 1 and 12, 1973, and January 10, 1974, Kimmons delivered barbiturates to Cardwell for cash on January 10, 1974. Agent Cardwell was the moving party who by requests for drugs initiated and sustained the conversations leading to the purchase. It is virtually undisputed that, prior to December 1, neither Cardwell nor any other agent had information tht Kimmons had engaged in the sale, as distinguished from the delivery, of controlled substances to minors or anyone else. Yet by their verdict the jury accepted the disputed testimony of agent Cardwell that, on each of the three occasions when he offered to buy drugs from Kimmons for money, Kimmons replied receptively and encouragingly. The issue then is whether Kimmons' evident disposition unlawfully to deliver controlled substances, as demonstrated by his prior conduct reported to the agents and described to the jury, was a sufficient predicate for the agent's proposal on December 1, 1973 and thereafter that Kimmons deliver drugs for cash.

We hold that the trial court properly submitted the case to the jury. While we cannot deny that public conscience and sentencing judges may discriminate between the mere delivery of controlled substances and their delivery for pecuniary profit, Kimmons was charged not with selling but with delivering drugs (§ 893.13(1)(a), F.S.1973). The delivery of drugs was the offense which Kimmons was predisposed to commit. We recognize that agent Cardwell was a prospective purchaser of drugs, not a casual solicitor, and we do not condone State overtures which instill hopes for pecuniary gain in the mind of one whose predeposition is only to deliver, on request or otherwise, without...