Mercer v. State, 94-1918
| Decision Date | 12 June 1995 |
| Docket Number | No. 94-1918,94-1918 |
| Parties | 20 Fla. L. Weekly D1430 Jean E. MERCER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Fred Parker Bingham II, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Thomas Falkinburg, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant challenges her conviction for obtaining or attempting to obtain possession of a controlled substance by uttering a forged prescription. She claims that the trial court committed fundamental error by giving an inaccurate jury instruction that permitted the jury to convict without proof of the essential elements of the offense, that the trial court erred in denying her motion for judgment of acquittal, and that certain costs were improperly imposed at sentencing. Because we agree that the jury instructions were fundamentally defective, we are compelled to reverse and remand for a new trial.
Section 893.13(7)(a)9, Florida Statutes (1991), under which appellant was charged, provides that it is unlawful "[t]o acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge." The state herein proceeded on the theory that appellant attempted to acquire or obtain Fiorinal by uttering a forged prescription. The evidence adduced at trial established that the prescription uttered by appellant was in fact forged. Appellant's theory of defense, however, was that she did not know the prescription was forged but rather, in good faith, believed it to be valid when she submitted it to the pharmacist. Stated otherwise, appellant claimed she lacked the mens rea necessary to support a conviction for attempting to obtain a controlled substance by uttering a forged prescription. At the completion of the presentation of evidence at trial, defense counsel moved for a judgment of acquittal on the basis of insufficient evidence of intent. The motion was denied.
During closing arguments, the prosecutor stated to the jury:
I would submit to you that when the judge instructs you on the law that applies in this case to Jean Mercer that you will not hear him say that the State must prove that Jean Mercer intentionally did anything. The law in this State is broken into both intentional--specific intent crimes and general intent crimes. When the State has to prove the intent of the person, then the Court instructs that you must find from the evidence that the State has proved intent.
* * * * * *
I think the Court will instruct you that the State must prove to you three elements and three elements only, and in none of those elements will you hear the word "intent"; that the State must prove that Jean Mercer attempted to acquire or obtain possession of a certain substance; that the substance was Fiorinal 3, codeine; and that Jean Mercer attempted to acquire that substance by misrepresentation, fraud, forgery, deception or subterfuge--the only three.
* * * * * *
... [L]et's talk first about the evidence from the defendant's mouth. She does not deny turning in the prescription. She does not deny that the prescription was for Fiorinal 3, and she does not deny coming back to pick up the medicine. In reality, you could stop right there and say, "Hey, all three of the elements are proven, even out of her mouth."
Immediately following closing arguments, the trial judge instructed the jury as follows:
Jean Mercer, the defendant in this case, has been accused of the crime of uttering a forged prescription. Certain drugs and chemical substances are by law known as "controlled substances." Fiorinal No. 3 is a controlled substance.
Before you can find the defendant guilty of...
To continue reading
Request your trial
-
Reed v. State
...605, 606 (Fla. 1st DCA 1996) (holding that instructing jury on nonexistent crime constituted fundamental error); Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995) (holding that failing to instruct on an essential element of a crime constituted fundamental error). The instant case invo......
-
Leveritt v. State
...or failure to instruct as to an essential element of a crime may rise to the level of fundamental error, see Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995), we do not find that fundamental error occurred We conclude that the instant case is controlled by Smith v. State, 521 So.2d 1......
-
Cardenas v. State
...or failure to instruct as to an essential element of a crime may rise to the level of fundamental error. See Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995). The instruction in the instant case, however, neither omitted from the definition of an offense one of the essential elements......
-
Leveritt v. State
...or failure to instruct as to an essential element of a crime may rise to the level of fundamental error, see Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995), we do not find that fundamental error occurred We conclude that the instant case is controlled by Smith v. State, 521 So.2d 1......