Munroe v. State, BM-117

• Decision Date: 20 October 1987
• Docket Number: No. BM-117,BM-117
• Citation: 514 So.2d 397
• Parties: Martha B. MUNROE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 397

514 So.2d 397

Martha B. MUNROE, Appellant, v. STATE of Florida, Appellee.

No. BM-117.

District Court of Appeal of Florida First District.

Oct. 20, 1987.

David P. Gauldin, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

FRANK, Judge.

Martha B. Munroe seeks to overcome the trial court's judgment and sentence stemming from a jury verdict in which she was convicted of conspiracy to traffic in an amount of cocaine exceeding 400 grams, conduct violative of section 893.135(4), Florida Statutes (1985). Munroe urges four points on appeal; i.e., (1) error in admitting the testimony of a FDLE agent, (2) the insufficiency of evidence disclosing the existence of a conspiracy, (3) an improper departure from the sentencing guidelines and (4) the trial court's refusal to instruct the jury on a lesser included offense. We have considered and find each of the asserted grounds meritless with the exception of the attack upon the departure sentence.

The setting from which this matter arose may be summarized as follows: Munroe was an active participant in a scheme to purchase cocaine. The vendors were undercover police officers who had fashioned a "reverse sting" operation. Although the ultimate sale, purchase and transfer of the cocaine was never completed, the evidence discloses that on April 3, 1985, Munroe, accompanied by Downing, met with Evans who was acting on behalf of the police officers as the go-between in their dealings with her. The meeting occurred in a motel room and as soon as Munroe and Downing arrived, Evans announced that the sellers had to be assured the purchase money was present. At Munroe's direction, Downing opened the suitcase and counted out $140,000. Munroe and Evans then left the room, Downing remained, and they drove to Quincy, Florida. They returned to the room where Downing was waiting, and after an hour or two had elapsed, Munroe and Evans went to another room in the motel where they met the undercover police officers. Munroe negotiated the purchase of 5 kilograms of cocaine and departed stating she would have someone test its quality. She went to the room where she had left Downing and together they went to a car and drove away. Downing was carrying the money-laden suitcase. Shortly thereafter, Munroe telephoned the motel room occupied by Evans and the police officers to report that she had seen a van in the motel parking lot and that someone was inside taking pictures. The sale aborted at that moment. Munroe and Downing departed driving west on Interstate 10; they were apprehended and arrested. The car and Downing were searched. The search of the car revealed a holstered gun between the front seats, a bottle of Clorox and the suitcase containing $155,000. The record discloses that Clorox is often used to test the quality of cocaine. Plastic bags were found in the suitcase and one of them bore Downing's fingerprints. Some of the money was found in a man's cowboy boots and socks. In searching Downing, the officers found that the walking shorts he was wearing under his jeans contained $1,362. Over Munroe's objection, Evans testified that he had met Munroe and Downing on an earlier occasion in Marathon, Florida, in connection with another cocaine transaction. We now turn to an analysis of the issues before us.

We find no merit in the contention grounded upon the testimony of the FDLE agent. Munroe has not offered and our search has not uncovered any authority to support the view that the agent had an obligation to advise her of the potential penalty at the time of her arrest. We agree with the state--the point is frivolous.

We have elected to review the sufficiency of the conspiracy evidence in spite of the fact that Munroe did not at any appropriate time invoke either Rule 3.380 or Rule 3.600 of the Florida Rules of Criminal Procedure. Generally, a challenge to the sufficiency of the evidence is not preserved for appellate review in the absence of either a motion for judgment of acquittal or a motion for new trial being tendered to the trial court. State v. Barber, 301 So.2d 7 (Fla.1974); Crenshaw v. State, 490 So.2d 1054 (Fla. 1st DCA 1986). Munroe's codefendant, Downing, however, timely sought a new trial. Although we have found no authority squarely responsive to the question of whether Munroe can avail herself of Downing's motion for new trial, it seems evident in the context of an alleged conspiracy between two defendants that if one of the conspirators were discharged as a result of insufficient evidence to sustain the existence of a conspiracy, the non-moving defendant may become the beneficiary of that event. We are able to extract from Cravero v. State, 334 So.2d 152 (Fla. 3d DCA 1976), rev. denied, 342 So.2d 1103 (Fla.1977), a logical basis for undertaking review of the sufficiency of the evidence. Having done so, we conclude that the evidence portrays Downing as vastly more than a passive bystander or a mere aider and abettor. Here, the evidence disclosing Downing's involvement in the transaction, from its beginning to end, was sufficient to permit the jury's determination that he had formed a compact with Munroe to accomplish the purchase of and trafficking in cocaine. The evidence describing Downing's activities in furtherance of the criminal objective is adequate to overcome the absence of utterances implicating him as an active partner in the scheme. Circumstantial evidence, alone, will support a finding of the two essential elements composing a conspiracy--an agreement and an intention to commit a crime. See, Bragg v. State, 487 So.2d 424 (Fla. 5th DCA 1986). Contrary to Munroe's assessment of the record, adequate evidence was offered to the jury, albeit circumstantial, warranting its determination that Munroe and Downing had conspired to traffic in cocaine. See LaPolla v. State, 504 So.2d 1353, 1357 (Fla. 4th DCA 1987).

In sentencing Munroe the trial court relied upon six grounds as justification for the imposition of an enhanced sentence; it committed Munroe to eighteen years imprisonment and a fine of $250,000. Munroe's scoresheet calculation produced a presumptive sentence of 3 1/2 to 4 1/2 years. Rule 3.701(d)(9) of the Florida Rules of Criminal Procedure required the trial court to impose a mandatory minimum sentence of fifteen years. See § 893.135(1)(b)(3), Fla.Stat. (1985). Munroe's sentence, however, exceeded the fifteen year mandatory minimum by the addition of three years. We again apply the principle that when the mandatory minimum sentence is greater than the recommended sentence, the statutory sentence becomes the presumptive sentence. Wetherby v. State, 469 So.2d 862 (Fla. 1st DCA 1985). Thus, for the trial court properly to enhance the presumptive sentence, it was required to express clear and convincing reasons for the extended period. Pedraza v. State, 493 So.2d 1122 (Fla. 3d DCA 1986), rev. denied, 504 So.2d 768 (Fla.1987). With the exception of the reason associated with the quantity of cocaine, see, e.g., Atwaters v. State, 495 So.2d 1219 (Fla. 1st DCA 1986), the trial court's bases for departure are invalid. The quantity of cocaine Munroe anticipated acquiring, notwithstanding it did not pass into her possession, is a valid reason for departure. Section 893.135(4), Florida Statutes (1985), provides that the punishment for conspiracy to commit the prohibited act is the same as if the act had been committed. The trial court noted in departing from the guidelines that it would enhance Munroe's sentence regardless of the number of reasons set forth in the order. ¹ That statement will no longer save a departure sentence predicated upon reasons found to be valid and invalid. Griffis v. State, 509 So.2d 1104 (Fla.1987).

In Albritton v. State, 476 So.2d 158 (Fla.1985), we were told that the affirmance of an extended sentence based upon appropriate and inappropriate grounds would be sustainable only when the state establishes beyond a reasonable doubt that departure would have occurred absent the invalid reasons. Griffis sanctions the practice of according the trial court on remand an "opportunity to review and weigh the appropriate [departure] factors" when in the context of valid and invalid bases for departure the state fails to prove beyond a reasonable doubt that the trial court would have departed. Griffis, at 1104. We vacate Munroe's sentence and direct the trial court upon resentencing to reweigh the acceptable departure ground in revisiting her sentence.

In her final point on appeal Munroe urges the notion that the trial court erred in refusing to instruct the jury on conspiracy merely to possess cocaine as a necessarily lesser included offense of conspiracy to traffic in cocaine. If Munroe were correct in claiming entitlement to the lesser included instruction, the jury would have been able to exercise its "pardon power." State v. Wimberly, 498 So.2d 929, 932 (Fla.1986). The trial court, however, did not err in rejecting the requested instruction. Munroe was charged in the information with conspiracy to traffic in more than 400 grams of cocaine in violation of section 893.135(4), Florida Statutes (1985). We take as an ingredient in her theory that because a standard jury instruction in effect at the time of her trial, designates the possession of cocaine in violation of section 893.13(1)(e) as a necessarily lesser included offense of trafficking in cocaine, an alleged conspiracy to possess cocaine in an amount constituting "trafficking" required an instruction on the lesser included offense of conspiracy to possess cocaine. ² Munroe's approach is bottomed upon sections 777.04(3) and 893.13(1)(e), Florida Statutes (1985). In her view, those provisions, treated together, generate the necessarily lesser included offense of conspiracy simply to possess cocaine, a crime she claims to be composed of elements embodied within the greater offense for which...