Schueren v. State, KK-185
| Decision Date | 26 April 1979 |
| Docket Number | No. KK-185,KK-185 |
| Citation | 370 So.2d 83 |
| Parties | Vincent L. "Larry" SCHUEREN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Clifford L. Davis, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
Appellant seeks reversal of a judgment and sentence for conspiracy to possess more than 100 pounds of marijuana, contending that there was insufficient evidence that he committed that offense, and that the circuit court had no jurisdiction to try him on that charge. We agree and reverse on both points.
The only tangible evidence presented against appellant was (1) a wire tap tape showing that he had relayed information by telephone to co-defendant Mitchell that certain parties in Gainesville had a quantity of marijuana for sale, and (2) evidence that he had later taken the Gainesville parties to Mitchell's residence when they brought the marijuana to Tallahassee for examination by Mitchell and a third co-defendant, Ryder. The record also reveals, however, that Mitchell and Ryder were not seriously interested in purchasing the marijuana and that they did not in fact purchase it. Further it was shown that the Gainesville parties, Toth and Workman, were arrested on their way back to Gainesville and thirty pounds of marijuana were seized from their vehicle.
The evidence was clearly insufficient to prove that appellant conspired to possess the marijuana. In Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979), the court vacated a judgment for possession of marijuana, finding:
Similarly here the state's proof showed only that appellant was a go-between in a transaction involving others, and that in fact that transaction never proceeded beyond preliminary stages. Nowhere in the State's case is there any evidence that appellant sought or agreed to obtain possession or exert dominion and control over the Gainesville marijuana at any time. Furthermore there is no evidence that Mitchell and/or Ryder ever formed the requisite intent to possess the marijuana. In short the evidence was simply insufficient to prove the conspiracy charged.
In addition, we agree with appellant that the circuit court had no subject matter jurisdiction to try him on the charge. This court held in Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978) that the crime of conspiracy to possess in excess of 100 pounds of cannabis is a first degree misdemeanor, not a third degree felony triable in circuit court. The State concedes this but argues that because the...
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State v. Edwards
...the codefendant as were made subsequent to the November 5 telephone call. 5 Appellee urges the applicability of Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979) wherein this court held that the evidence was insufficient to prove that Schueren conspired with others to possess marijuana an......
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