Menendez v. State, BR-378

• Decision Date: 16 February 1988
• Docket Number: No. BR-378,BR-378
• Citation: 13 Fla. L. Weekly 437,521 So.2d 210
• Parties: 13 Fla. L. Weekly 437 Miguel MENENDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 210

521 So.2d 210

13 Fla. L. Weekly 437

Miguel MENENDEZ, Appellant, v. STATE of Florida, Appellee.

No. BR-378.

District Court of Appeal of Florida,

First District.

Feb. 16, 1988.

Michael E. Allen, Public Defender and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

This is an appeal of a judgment and sentences of appellant for trafficking in cocaine while in possession of a firearm under sections 775.087(1)(a), and 893.135(1)(b), Florida Statutes (1985), and for possession of cocaine under section 893.13(1)(e), Florida Statutes (1985). ¹ We affirm as to both counts and sentences.

Appellant raises two issues on appeal: 1) whether the trial court erred in denying appellant's motion for judgment of acquittal as to the charge of trafficking while in possession of a firearm; and 2) whether the trial court erred in denying appellant's motion to suppress as evidence cocaine found in a car and which served as the substance for the possession charge.

On February 27, 1986, police officers in Fort Walton Beach, acting pursuant to a search warrant, entered a motel room that had been rented the previous day. Inside were appellant, another adult male, an adult female and a child. Searching the room, police found over six hundred grams of cocaine in a locked briefcase, a set of scales, a box of plastic baggies, and over $6,000 in cash. Four police officers who were in the room testified that appellant, at the time of the search, admitted owning the cocaine. Between the box springs and mattress of one of the beds police also discovered a loaded .38 caliber handgun bearing appellant's fingerprint.

Searching the Cadillac which the four inhabitants of the room had driven from Texas the previous day, police found the trunk of the car strewn with several ounces of rice, a material commonly used as a dehumidifier to keep cocaine in powdered form. Searching the Oldsmobile which appellant had borrowed from his uncle on arriving in Fort Walton Beach and from which police had observed appellant exit only minutes before, police discovered 25 grams of cocaine in a clear plastic bag in plain view on the floor. On the basis of the cocaine found in the room, appellant was charged with trafficking in cocaine. Because of the gun found in the room he was alleged to have been armed with a firearm during the commission of the crime and the classification of the trafficking offense was enhanced pursuant to section 775.087(1), Florida Statutes (1985) from a first degree to a life felony. On the second count based on the cocaine found in the Oldsmobile, appellant was also convicted of possession of cocaine and was sentenced to a concurrent five year prison term.

The first issue presents two questions: 1) What constitutes "carries" or "uses" a firearm under section 775.087(1), and 2) whether the evidence that appellant carried or used a firearm while trafficking in cocaine was such that no view that the jury could lawfully take of it favorable to the state could be sustained under the law. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974). As to the first question, section 775.087(1), at issue here, is unlike section 775.087(2). ² Section 775.087(2) calls for the imposition of a three year mandatory minimum sentence when persons commit certain crimes while having in their "possession" a firearm. The courts have interpreted that subsection as requiring the actual physical possession of the firearm. See e.g., Earnest v. State, 351 So.2d 957 (Fla.1977); Bellinger v. State, 514 So.2d 1142 (Fla. 1st DCA 1987). However, under section 775.087(1), which calls for enhancement of certain felonies committed when the offender "carries" or "uses" a firearm, actual physical possession of the weapon is not required in all cases. See Smith v. State, 438 So.2d 10 (Fla. 2d DCA 1983), pet. for review denied, 447 So.2d 888 (Fla.1984). We find that an offender does not have to have physical possession of the firearm under subsection (1); but if the firearm is readily available to him, that is sufficient.

As to the second question, appellant was arrested in the same room with a large quantity of cocaine, drug trafficking equipment, thousands of dollars in cash and a firearm on which his fingerprint was found. In such cases where circumstantial evidence alone is relied upon to convict a defendant, the question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine. Buenoano v. State, 478 So.2d 387 (Fla. 1st DCA 1985), rev. dismissed, 504 So.2d 762 (Fla.1987). In the instant case competent, substantial evidence supports the trial court's finding that appellant carried or used a firearm in the course of trafficking in cocaine. See Broughton v. State, 12 FLW 2137 (Fla. 1st DCA Sept. 3, 1987); Smith, 438 So.2d at 10. Appellant's trafficking offense, as with many drug possession offenses, was essentially ongoing. Appellant was in violation of the law during the entire time he was in possession of a sufficient quantity of cocaine to constitute trafficking under section 893.135(1)(b). Section 775.087(1)(a) does not require that appellant be in actual physical possession of a firearm at a particular point during the trafficking offense in light of the nature of the trafficking crime. ³ Such crimes can last for months, and the purpose served by the firearm can often be adequately accomplished by merely having the firearm available in the vicinity of the drugs. We, therefore, affirm the denial of appellant's motion for judgment of acquittal.

As to the second issue, appellant contends that the cocaine seized in the Oldsmobile should have been suppressed as evidence because the car, parked in the motel parking lot, was outside of the motel room's curtilage. The operative search warrant authorized the search of the motel room and "any and all person(s) and/or vehicles located on the curtilage." Under this court's ruling in Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), cert. discharged, 325 So.2d 404 (Fla.1976), as applied to the facts of this case, where the appellant drove the car into the motel parking lot and was seen entering the motel from the car, we find the car parked in the motel parking lot was within the motel room's curtilage. We affirm the denial of appellants motion to suppress.

The convictions and sentences are therefore affirmed.

BARFIELD, J., concurs.

ERVIN, J., concurs and dissents with opinion.

ERVIN, Judge, concurring and dissenting.

I concur with the majority in its affirmance of appellant's conviction for the offense of possession of cocaine, but would reverse appellant's enhanced conviction for trafficking in cocaine while in possession of a firearm, on the ground that the state failed to establish by legally sufficient evidence that appellant was in actual possession of the firearm during the commission of such offense. I see no material distinction between the construction placed upon Section 775.087(2)(a), Florida Statutes (the mandatory minimum sentencing provision), and Section 775.087(1) (the subsection reclassifying certain felonies to higher degrees). I consider both require, in order for the more severe sanctions to attach, that the offender have in his actual possession a firearm during the commission of the applicable offenses.

Subsection (2) of the statute--unlike subsection (1)--provides simply that the accused have "in his possession a 'firearm,' " yet the Florida Supreme Court has construed this language strictly, stating that proof of vicarious possession is not sufficient under the statute's terms for the purpose of subjecting one to mandatory minimum sentencing--only actual possession will suffice. Earnest v. State, 351 So.2d 957 (Fla.1977). In my judgment the legislative intent that actual possession of a firearm occur in order to reclassify a crime to a greater felony is even more clearly evinced by the language employed in subsection (1), providing for reclassification of the crime if, during its commission, the offender "carries, displays, uses, threatens, or attempts to use any weapon or firearm." I am therefore of the view that both subsections require proof of actual possession for the purpose of imposing the harsher criminal sanctions therein specified.

The majority cites Smith v. State, 438 So.2d 10 (Fla. 2d DCA 1983), pet. for review denied, 447 So.2d 888 (Fla.1984), to support its position that a lesser standard of proof of possession is required by section 775.087(1), than that provided by section 775.087(2). To the contrary, however, I consider the interpretation placed upon subsection (1) by Smith to be identical to that given subsection (2). In Smith, appellant Wagner had argued that his sentence could not be enhanced from a third degree felony to a second degree felony, pursuant to subsection (1), for the reason that the firearm he was accused of possessing during the commission of the crime was not found on his person at the time of his arrest, but was rather located in the immediate area of a van where he had been earlier seated. The Second District rejected his argument, observing that "[t]he weapon was within Wagner's immediate grasp." Id. at 14 (e.s.). Smith, in my opinion, is simply an acknowledgment of the rule that proof of actual possession of a firearm necessary to sustain a conviction for an enhanced felony may be established by circumstantial evidence.

Similarly, circumstantial evidence of actual possession of a firearm may be used for the purpose of mandatory minimum sentencing. See Bradley v. State, 413 So.2d 1248 (Fla. 1st DCA 1982); Whitehead v. State, 446 So.2d 194, 196 (Fla. 4th DCA 1984). In Bradley, this court approved a three-year mandatory sentence, based upon circumstantial evidence of a defendant's possession of a firearm during the commission of a robbery, despite the absence of...