Norman v. State
Decision Date | 28 August 2002 |
Docket Number | No. 1D01-1729.,1D01-1729. |
Citation | 826 So.2d 440 |
Parties | Roderick NORMAN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
Roderick Norman appeals his conviction for sale or delivery of cocaine, contending that he was entitled to a jury instruction the trial court refused to give, which would have required the jury to find, in order to convict, that he knew that the substance that changed hands1 was cocaine. The state argues that a statute enacted after the offense allegedly occurred,2 governs the outcome of the appeal, and precludes reversal otherwise concededly required by our supreme court's recent decision in McMillon v. State, 813 So.2d 56 (Fla.2002). We reject this contention as repugnant to article X, section 9, of the Florida Constitution, which prohibits retroactive application of statutes in criminal proceedings in these words: "Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." Accordingly, we reverse and remand for a new trial before a jury instructed in the manner the supreme court required in McMillon v. State, 813 So.2d 56, 58 (Fla. 2002).
The trial court denied trial counsel's request for an instruction requiring the jury to find (in order to convict) that the defendant must have known the transferred substance was cocaine. In making her request, defense counsel explicitly relied on our decision in Jenkins v. State, 694 So.2d 78, 80 (Fla. 1st DCA 1997) ( ). In Jenkins, which anticipated the supreme court's decision in McMillon, we had applied the supreme court's reasoning in Chicone v. State, 684 So.2d 736, 737, 745-46 (Fla.1996) ( ), in a sale case. Subsequently, in Scott v. State, 808 So.2d 166, 170-72 (Fla.2002), the supreme court made clear that "[i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance," and held the omission was not harmless, rejecting the view espoused in Roberts v. State, 752 So.2d 1230, 1230 (Fla. 1st DCA 2000), and Leaks v. State, 748 So.2d 285, 287 (Fla. 2d DCA 1998), in favor of the view expressed in Gary v. State, 806 So.2d 582, 583 (Fla. 4th DCA 2002). See also Jackson v. State, 27 Fla. L. Weekly D1557, D1557, ___ So.2d ___, ___, 2002 WL 1430482 (Fla. 4th DCA July 3, 2002) (). Before Chapter 2002-258, Laws of Florida, took effect on May 13, 2002, the supreme court itself applied the reasoning in Chicone and Scott to a case involving the sale or delivery of cocaine. See McMillon, 813 So.2d at 58
.
Here the state charged Mr. Norman with sale or delivery of cocaine occurring on November 8, 2000, after Chicone, Jenkins and Roberts had been decided, but before the supreme court's decisions in Scott and McMillon, which reaffirmed Chicone, approved Jenkins by implication, and disapproved Roberts, again by implication. The subsequent enactment of Chapter 2002-258, Laws of Florida, notwithstanding, the decision in McMillon controls in the present case. We recently explained:
Special care must be exercised in interpreting criminal statutes where subsequently enacted legislation is considered, because the Florida Constitution restricts legislative power by forbidding statutes that authorize sanctions, and proscribing the application of later enacted statutes that "affect prosecution," for conduct that has already occurred. See Art. X, § 9, Fla. Const. (); State v. Smith, 547 So.2d 613, 616 (Fla. 1989); Booker v. State, 514 So.2d 1079, 1082-83 (Fla.1987); State v. Eldredge, 801 So.2d 965 (Fla. 4th DCA 2001); Rock v. State, 800 So.2d 298, 299 (Fla. 3d DCA 2001); State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001); Heath v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988).... [C]onstitutional restrictions on retrospective criminal statutes apply with full force to legislation explicitly purporting to nullify a judicial decision that has given a criminal statute a definitive gloss. See Smith, 547 So.2d at 616-17
.
Foster v. State, 27 Fla. L. Weekly D1360, D1362, ___ So.2d ___, ___, 2002 WL 1285453 (Fla. 1st DCA 2002) (footnotes omitted). The prospective effect of Chapter 2002-258, section 1, Laws of Florida, is not at issue in the present case, and we intimate no view on that subject. Because we ground our decision on Article X, section 9 of the Florida Constitution, without reaching the separate but related question whether application of the new statute retroactively would violate the ex post facto prohibition in Article I, section 10 of the Florida Constitution ( ), we need not (and so do not) address the precise effect of the decision in Roberts before that decision was abrogated by Scott and McMillon.
Reversed and remanded.
1. There was no evidence that the appellant ever had physical custody of the cocaine it was alleged he sold or delivered. But this circumstance is not controlling. See McMillon v. State, 813 So.2d 56, 58 (Fla.2002)
2. Creating Section 893.101, Florida Statutes, Chapter 2002 258, ...
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