Rotenberry v. State
| Citation | 10 Fla. L. Weekly 237,468 So.2d 971 |
| Decision Date | 25 April 1985 |
| Docket Number | 63720,Nos. 63719,s. 63719 |
| Parties | 10 Fla. L. Weekly 237 James Ray ROTENBERRY, Petitioner, v. STATE of Florida, Respondent. STATE of Florida, Petitioner, v. James Ray ROTENBERRY, Respondent. |
| Court | United States State Supreme Court of Florida |
Paula S. Saunders, Asst. Public Defender, Tallahassee, for petitioner, respondent.
Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty., Tallahassee, for respondent, petitioner.
This case is before us on a question certified by the First District Court of Appeal to be of great public importance. Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.
Petitioner, James Ray Rotenberry, was charged in a three count information with trafficking in cocaine, sale of cocaine, and possession of cocaine. At trial, petitioner relied on the defense of entrapment as to all the counts alleged against him.
In August 1981, Officer Snow of the Pensacola Police Department met with Van Price in a scheme to purchase marijuana from Marvin Hurst. Price had been arrested that day for grand theft. Price contacted Hurst several times over a four-day period to arrange the drug deal. Hurst, in turn, contacted Rotenberry about obtaining the drugs for Price. When first approached about the sale of drugs, Rotenberry said that he had none to sell. Rotenberry later agreed to supply Hurst with cocaine. Price testified that he had never purchased drugs from Rotenberry and would not have purchased the cocaine from Hurst but for the police asking him to do it. Hurst testified that he contacted Rotenberry about acquiring the drugs because Price was pressuring him and Rotenberry was the only person Hurst could trust.
The transaction took place in a parking lot. Rotenberry sat in his truck while Hurst made contact with Price and Snow. Following the delivery of the cocaine and transfer of money, Rotenberry was arrested.
During the charge conference, the petitioner requested a special instruction on the defense of entrapment. He requested that the court give Florida Standard Jury Instruction (Criminal) 3.04(c) 1 but delete the last sentence--
If you find from the evidence that the defendant was entrapped, or if the evidence raises a reasonable doubt about the defendant's guilt, you should find him not guilty.
--and substitute the following instruction from the former standard jury instruction, 2.11(e) 2-- The state must prove beyond a reasonable doubt that the defendant was not the victim of entrapment by law enforcement officers, and unless it has done so you should find the defendant not guilty.
The court refused to give the requested instruction and instead gave the standard jury instruction on entrapment.
The jury found the petitioner guilty as charged on all three counts. He was sentenced to serve five years on each of the counts, to run concurrently, and to pay a fine of $50,000. The trial court denied petitioner's motion to vacate the sentence or set aside the adjudication of guilt on the sale and possession charges on the ground that section 775.021(4), Florida Statutes (1981), precludes multiple sentencing on lesser included offenses committed during the same criminal episode.
The district court affirmed the trial court's actions regarding the entrapment defense, but reversed the sentences for possession and sale of cocaine, holding they were lesser included offenses of the charge of trafficking in cocaine. We do not disturb the district court's holding that there was sufficient evidence to support the convictions on the basis of a showing that Rotenberry was predisposed to commit the crimes charged. However, we do address the petitioner's challenge to the jury instruction and the state's cross appeal challenging the reversal of the sentencing on the lesser included offense convictions.
The district court examined Rotenberry's challenge to the sufficiency of the evidence regarding predisposition in the context of its previous decision in Wheeler v. State, 425 So.2d 109 (Fla. 1st DCA 1982). In Wheeler, the district court held that the state bears the burden of proving a defendant was predisposed to commit a crime where the defendant has adduced some evidence of entrapment. The Wheeler court certified to this Court the question of where the burden of proof lies in an entrapment defense, and the Rotenberry court endorsed the certification. We have answered that question in State v. Wheeler, 468 So.2d 978 (Fla.1985). However, the Rotenberry court went on to certify another question to this court, which extends the issue raised in Wheeler to its logical conclusion:
429 So.2d at 380. We hold that instruction 3.04(c) is adequate in combination with the general reasonable doubt instruction. 3
Initially, we note that the final sentence of instruction 3.04(c) reflects this Court's holding in State v. Liptak, 277 So.2d 19, 22 (Fla.1973):
While the state always has the burden of proving the guilt of [the] accused beyond a reasonable doubt and the accused never has the burden of proving his innocence, nevertheless, the burden of adducing evidence on the defense of entrapment is on the accused unless the facts relied on otherwise appear in evidence to such an extent as to raise in the minds of the jury a reasonable doubt of guilt.
(quoting Koptyra v. State, 172 So.2d 628, 632 (Fla. 2d DCA 1965)). In Wheeler, we find this language to be reconcilable with instruction 2.11(e) because the Liptak statement merely stops short of explaining that the state still has the burden to disprove entrapment once the accused has adduced sufficient evidence. Just as the Liptak statement is accurate, so too the current instruction on entrapment, 3.04(c), is accurate when read in the context of the entire set of instructions to the jury, which includes the general instruction on reasonable doubt.
Instruction 3.04(c) is adequate because it contains the essential element the state is required to prove, predisposition: (Emphasis added.) The jury thus is instructed that the predisposition of the defendant is an essential element in determining guilt. The reasonable doubt instruction, 2.03, states, in relevant part: (Emphasis added.) If the defendant is required to prove nothing, then the predisposition element of the entrapment instruction clearly must be proved by the state, not the defendant.
We agree that the language requested by Rotenberry during the charge conference, taken from the old entrapment instruction, more clearly sets out the state's burden of proof on entrapment. However, as we explain in Wheeler, the reason for deleting this language was to deemphasize the state's burden of proof. There is neither the need to give added emphasis to the state's burden of proof, Sylvester v. State, 46 Fla. 166, 35 So. 142 (1903), nor the necessity to include a statement of the state's burden of proof in the entrapment instruction when the jury is also instructed, as it always is in a criminal case, as to the state's general burden to prove guilt beyond a reasonable doubt. "[A] single instruction is not required to contain all the law relating to the subject treated, and, in determining what challenged instructions are proper or improper, the entire instructions as given must be considered as an entirety and should not be considered in isolated portions." Peele v. State, 155 Fla. 235, 239, 20 So.2d 120, 122 (1944). A delicate balance has been struck between informing the jury on the law of entrapment and avoiding undue emphasis on the state's burden of proof.
Turning now to the convictions and sentences for sale and possession of cocaine, we conclude that the legislature did not intend the charge of trafficking in cocaine to encompass possession and sale as lesser included offenses. Rotenberry was charged, convicted, and sentenced for violation of three statutes, towit sections 893.13(1)(a), 893.13(1)(e), and 893.135(1)(b), Florida Statutes (1981). 4 In Bell v. State, 437 So.2d 1057 (Fla.1983), we held that
[t]he mere existence of two statutory offenses does not establish that the legislature intended each to be independently convictable and punishable when both are committed in a single course of conduct. In the present case, the legislature has codified the distinctly different statutory offenses of sale of illegal drugs [§ 893.13(1)(a) ] and possession of illegal drugs [893.13(1)(e) ]. Also it has been determined that another offense, trafficking in illegal drugs, is committed when either or both of the offenses of sale or possession of a certain amount of illegal drugs is effected [§ 893.135]. By including sale and possession of drugs within the trafficking statute, it is apparent that the legislature intended to facilitate trafficking prosecutions through the use of alternative methods of proof rather than attempting to provide for multiple convictions and punishments for criminal...
To continue reading
Request your trial
-
Carawan v. State
...as a rule of construction, will not prevail over actual intent. Houser v. State, 474 So.2d 1193, 1196 (Fla.1985); Rotenberry v. State, 468 So.2d 971, 975 (Fla.1985). Thus, the only purpose of section 775.021(4) is as an aid in determining the intent behind particular penal statutes when tha......
-
Flarity v. State
...statutes the "same evil," the supreme court in Carawan v. State, 515 So.2d 161 (Fla.1987) receded from Rodriquez and from Rotenberry v. State, 468 So.2d 971 (Fla.1985) and, in Hall v. State, 517 So.2d 678 (Fla.1988), overruled State v. Gibson, 452 So.2d 553 (Fla.1984). In receding from Rodr......
-
Steiner v. State
...double jeopardy analysis. See Baker v. State, 425 So.2d 36, 50 (Fla. 5th DCA 1982) (Cowart, J. dissenting) approved in Rotenberry v. State, 468 So.2d 971 (Fla.1985). Similar issues are also involved in the cases which deal with whether a local ordinance is in conflict with or merely supplem......
-
Brown v. State
...Jury Instructions (Criminal), 431 So.2d 594 (Fla.), as modified on other grounds, 431 So.2d 599 (Fla.1981). See also Rotenberry v. State, 468 So.2d 971 (Fla.1985), receded from on other grounds, Carawan v. State, 515 So.2d 161 (Fla.1987); Williams v. State, 437 So.2d 133 (Fla.1983), cert. d......