Rotenberry v. State, AL-41
| Decision Date | 18 March 1983 |
| Docket Number | No. AL-41,AL-41 |
| Citation | 429 So.2d 378 |
| Parties | James Ray ROTENBERRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
Rotenberry appeals from a judgment entered following his conviction, after trial by jury, of trafficking in cocaine, sale of cocaine, and possession of cocaine that concluded in appellant being sentenced to serve five years on each of the three counts to run concurrently, and pay a fine of $50,000. The court denied appellant's motion to vacate the sentence or set aside the adjudication of guilt as to the sale and possession charges on the ground that Section 775.021(4) precludes multiple sentencing on lesser included offenses committed during the same criminal episode. We affirm in part and reverse in part.
In pursuit of making a drug bust, officers in the Pensacola Police Department devised a scheme to purchase marijuana from certain dealers in the area with the ultimate goal of breaking up one of several drug rings in the city. The police made one contact, who in turn sought assistance in acquiring the marijuana from other of his friends who might have access to the drug. Appellant was called, not by law enforcement agents but by a friend several times removed from the authorities.
When first approached about the sale of drugs, Rotenberry declined saying that he had none to sell. Later, he agreed to make available cocaine although it was acknowledged that Rotenberry's friend had never purchased that drug from appellant before and would not have purchased the cocaine this time but for the pressure the contact received from his friend who was being pressed by the police. Following delivery of the cocaine and transfer of the money, appellant was arrested and later faced testimony at his trial by the several contacts who were also involved in the drug transaction.
Appellant, at trial, raised the affirmative defense of entrapment and now asserts that the trial court erred in not granting his motion for judgment of acquittal as the state failed to show that he had a predisposition to commit the offenses. Next, appellant seeks review of the trial court's denial of his requested instruction on entrapment. Finally, he seeks reversal of the trial court's denial of his motion to vacate the sentences on the two lesser included offenses committed during the criminal episode, i.e., the sale of cocaine and possession of cocaine.
The first issue narrows our review to whether the state failed to show beyond a reasonable doubt that Rotenberry had a predisposition to possess, sell, and otherwise traffic in drugs, more particularly cocaine. Otherwise stated, appellant's contention is that once a defendant has presented evidence of entrapment, the burden then shifts to the state to prove beyond a reasonable doubt that the defendant was not entrapped. This Court has previously adopted that position in Wheeler v. State, 425 So.2d 109 (Fla. 1st DCA 1982), which accords with Moody v. State, 359 So.2d 557 (Fla. 4th DCA 1978). However, in Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978), the court recognized that "the predisposition of the defendant to commit a crime can be inferred from the defendant's readiness or willingness to commit it." The court further held there that "this willingness to commit the offense can be evinced from the defendant's ready acquiescence in the criminal scheme." Id. at 1215.
Appellant was unpersuasive with the jury, the trial court and now this Court that he was a victim of "undue pressure" which constituted the entrapment. It clearly appears from the evidence that Rotenberry had possessed illegal drugs in the past; that he was a willing participant in the drug transaction; that at no time did he object to the planned criminal activities; and that it was his friend, not law enforcement officers, who lured him into the "deal." Appellant's predisposition and promptness were sufficiently demonstrated and sufficiently proven in...
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Munroe v. State, BM-117
...the sentences for the two lesser offenses should be vacated pursuant to Section 775.021(4), Florida Statutes (1981). 1 Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983). The Florida Supreme Court reversed, [W]e conclude that the legislature did not intend the charge of trafficking in c......
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Rotenberry v. State
...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 Petitioner, James Ray Rotenberry, was charged in a t......
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Yohn v. State
...analogized the sufficiency of the present instructions relating to the defense of insanity with those given in Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983), relating to the affirmative defense of entrapment. In Rotenberry, defendant requested a special instruction on the issue of ......
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Johnson v. State, 64628
...PER CURIAM. We accepted jurisdiction of this case because the district court certified the same question certified in Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983), questioning the sufficiency of Florida Standard Jury Instruction (Criminal) 3.04(c). We find the instruction adequate......