Louissaint v. State, 89-1803
| Decision Date | 20 December 1990 |
| Docket Number | No. 89-1803,89-1803 |
| Citation | 16 Fla. L. Weekly 66,576 So.2d 316 |
| Parties | 16 Fla. L. Weekly 66, 16 Fla. L. Weekly 769 Michael LOUISSAINT, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Ronald N. Toward, Bartow, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.
Michael Louissaint appeals a judgment finding him guilty of attempted trafficking in cocaine and determining him to be a habitual offender and a sentence in excess of the guideline range.
Louissaint claims that since the evidence (cocaine) was negligently destroyed before his trial, his conviction cannot stand. We disagree. Here, the trial court followed the procedure set out in State v. Ritter, 448 So.2d 512 (Fla. 5th DCA 1984) and suppressed the testimony of the chemist concerning the nature and weight of the cocaine. As stated in Ritter, the charge of "attempt" does not require proof that the substance involved was actually cocaine. See also United States v. Pietri, 683 F.2d 877 (5th Cir.1982); State v. Cohen, 409 So.2d 64 (Fla. 1st DCA 1982). The conviction is affirmed.
Since the offense was committed prior to October 1, 1988, the sentence is subject to the sentencing guidelines as determined by Whitehead v. State, 498 So.2d 863 (Fla.1986). The only ground listed to justify the departure is that "the defendant is not amenable to previous attempts at rehabilitation." The judge relied on the fact that while on probation for burglary and grand theft, Louissaint committed a second degree felony (possession of a firearm by a convicted felon). Louissaint was sentenced to only thirty-four days in jail for that offense and was restored to probation in order to encourage rehabilitation. This extraordinary effort toward rehabilitation was at the request of the probation officer and state attorney. Shortly thereafter, Louissaint committed the present offense while still on probation.
Non-amenability to rehabilitation is not a valid reason for departure when the determination is based on a prior record which has been computed into the guideline sentence. Sellers v. State, 559 So.2d 378 (Fla. 2d DCA 1990); Tapia v. State, 509 So.2d 354 (Fla. 2d DCA 1987). Here, while the court did not determine non-amenability merely because the defendant committed three felonies in a short period of time (all scored), but rather emphasized that the proof of non-amenability was that the present offense was committed "despite these efforts to rehabilitate the Defendant," still the sentencing offense (scored) necessarily was involved in his consideration. Tillman v. State, 525 So.2d 862 (Fla.1988) requires reversal.
The state, although untimely, 1 filed a cross-appeal challenging the court's exclusion It would be fundamentally unfair, as well as a violation of Rule 3.220, to allow the state to negligently dispose of critical evidence and then offer an expert witness whose testimony cannot be refuted by the defendant. Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980); see also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Johnson v. State, 249 So.2d 470 (Fla. 3rd DCA 1971), cert. dismissed, 280 So.2d 673 (Fla.1973).
of the chemist's testimony. The state urges that a "bad faith" standard, rather than a "negligent" standard should be used when evidence is lost or destroyed before trial. This issue was decided in State v. Ritter, supra.:
The state's other issue on cross-appeal is likewise without merit.
Conviction AFFIRMED; sentence REVERSED and REMANDED for resentencing.
ON MOTION FOR REHEARING
The state, as cross-appellant, has moved for rehearing on the issue of the trial court's exclusion of expert testimony, a sanction for the state's negligent destruction of evidence (cocaine) which the expert had evaluated. The state suggests that the prior opinions of this court in State v. Larrinaga, 569 So.2d 911 (Fla. 5th DCA 1990) and State v. Ritter, 448 So.2d 512 (Fla. 5th DCA 1984) are in conflict. We grant rehearing to clarify that any such conflict has now been resolved by the intervening advent of Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), rehearing denied, 488 U.S. 1051, 109 S.Ct. 885, 102 L.Ed.2d 1007 (1989); see also Kelley v. State, 569 So.2d 754 (Fla.1990).
In Youngblood it was held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." In the instant case, cocaine seized by the police was inadvertently destroyed after the granting of a motion to suppress by the codefendant. We disagree with the trial court's finding that this constituted an infringement of the "fundamental fairness" requirement of the due process clause, but we affirm the exercise of the trial court's discretion in excluding the testimony of the state's expert witness, who had examined that particular cocaine, based upon the sanction provision of Florida Rule of Criminal Procedure 3.220(n). Whether or not the trial court utilizes the sanction of excluding testimony as a result of the inadvertent loss or destruction of evidence by the state is a matter of the trial court's discretion based on the facts of the individual case.
Accordingly, we vacate that portion of our original opinion dealing with the state's cross-appeal regarding the trial court's exclusion of the chemist's testimony, and substitute therefor the foregoing opinion, expressly relying upon the holding in Youngblood.
MOTION FOR REHEARING GRANTED; PRIOR OPINION MODIFIED.
HARRIS, J., concurs specially with opinion.
I concur with that portion of the majority opinion which upholds the trial court's refusal to admit the expert's testimony, but I disagree with its reason.
The State argues that State v. Larrinaga, 569 So.2d 911 (Fla. 5th DCA 1990) and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) hold that it is not a due process violation to negligently destroy evidence. That is an oversimplification of these decisions. In both cases the evidence involved was evidence that the State did not intend to offer. In Larrinaga it was the taped interviews of the victims. The court found no prejudice because the victims were prepared to verify their original exculpatory statements. In Youngblood...
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