Lyons v. State, 5D00-3536.
| Decision Date | 01 February 2002 |
| Docket Number | No. 5D00-3536.,5D00-3536. |
| Citation | 807 So.2d 709 |
| Parties | Samuel LYONS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
Following a traffic stop based on a window tint violation, officers discovered, hidden in a cereal box in a grocery bag in the back seat, two bricks of powdered cocaine, weighing together, 813.4 grams. The appellant was a passenger in the vehicle; his girlfriend was the driver. The appellant was eventually convicted in a jury trial of trafficking in cocaine in an amount in excess of 400 grams. While he raises three issues in this appeal, we find only one merits discussion.
The appellant argues that, because the cocaine was randomly tested only after the contents of the two bags were commingled, there was insufficient evidence to support his conviction for trafficking in greater than 400 grams of cocaine. Specifically, appellant notes the combined weight of the substance found in the two bags was 813.4 grams, that his trafficking conviction was for possession of 400 grams or more, but that because of the commingling, there was no way for the jury to reasonably conclude that one of the bags contained at least 400 grams of a substance containing cocaine.1
It has been found with respect to powder cocaine wrapped in separate containers, that a sample must come from each container in order to have the amount in each container included in the total alleged amount of contraband. Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988). For rock, or crack cocaine, however, this rule against such commingling does not exist. Collins v. State, 717 So.2d 186 (Fla. 5th DCA 1998) (); Bond v. State, 538 So.2d 499 (Fla. 3d DCA 1989) ( ).
In Ross, the state tested only two of 92 packets containing powdered cocaine and then attempted to include the weight of the contents of all 92 packages to support the trafficking conviction. The appellate court ruled that random testing of separately wrapped powdered cocaine is sufficient for a conviction based on the total quantity of all of the wrapped powdered substances but only if a sample from each individual packet is tested. In State v. Clark, 538 So.2d 500 (Fla. 3d DCA 1989), the third district relied on its earlier Ross decision in affirming a trial court's reduction of charges from trafficking to possession where the state commingled the contents of an unspecified number of capsules before testing the combined contents.
Judge Schwartz, in his dissent in Ross, found that the positive testing of two of the 92 bags, when viewed with the other evidence, such as the fact that each bag was packaged the same and appeared the same, reasonably supported the inference that each bag also likely contained a mixture of cocaine. We note in the instant case, there was...
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Greenwade v. State
... ... Id. (emphasis supplied). Finally, in Lyons v. State, the defendant was convicted of trafficking in cocaine in an amount greater than 400 grams after two bricks of powdered cocaine were ... ...
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PURVIS v. State of Fla.
...1239 (Fla. 3d DCA 1988) (requiring testing of contents of each package before commingling to obtain aggregate weight). Lyons v. State, 807 So.2d 709 (Fla. 5th DCA 2002), on which the State relied below, does not command a different result. There, the chemist commingled two bricks of suspect......
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Black v. State, 5D02-1040.
...case. Black could have been found guilty of possession if he possessed the controlled substance at either time. See Lyons v. State, 807 So.2d 709 (Fla. 5th DCA 2002) (evidence was sufficient to convict defendant of trafficking in cocaine in an amount in excess of 400 grams, even though two ......
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Sheridan v. State, 2D01-3885.
...powdered cocaine and crack cocaine in the context of determining the weight for trafficking purposes was noted in Lyons v. State, 807 So.2d 709, 710 (Fla. 5th DCA 2002). There, the court noted that the rule against commingling did not apply to crack cocaine but did apply to the powdered coc......