State v. Brandon, 80-155

• Decision Date: 03 June 1981
• Docket Number: No. 80-155,80-155
• Citation: 399 So.2d 459
• Parties: STATE of Florida, Appellant, v. Robert L. BRANDON, Appellee.
• Court: Florida District Court of Appeals

Page 459

399 So.2d 459

STATE of Florida, Appellant, v. Robert L. BRANDON, Appellee.

No. 80-155.

District Court of Appeal of Florida, Second District.

June 3, 1981.

Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.

Frank Louderback of Louderback & McCoun, St. Petersburg, for appellee.

HOBSON, Acting Chief Judge.

Appellee Brandon was charged by information with conspiracy to commit the crime of possession of in excess of 100 pounds of cannabis. Appellee filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted appellee's motion and discharged him. We reverse.

Appellee's amended motion alleged the following facts:

(a) In late March 1979, Detective Cavaliere was introduced to Lawrence Smith by a confidential informant for the purpose of attempting to purchase a quantity of quaaludes.

(b) After it was determined that Smith would be unable to supply the quaaludes, Smith proposed to Cavaliere that Smith would arrange for the importation of a quantity of marijuana.

(c) Cavaliere, at that point, realizing that at most Smith had committed solicitation to commit a crime, informed Smith that he wanted to meet all of the persons who would be involved in the importation scheme.

(d) On April 5, 1979, Smith introduced the defendant, ROBERT L. BRANDON, III, to Detective Cavaliere at the Ramada Inn-Countryside, Clearwater, Pinellas County, Florida, in a room which had been obtained by Cavaliere and had been wired for the interception of communications.

(e) After meeting Cavaliere, BRANDON left the room and a conversation took place between Smith and Cavaliere as to the particulars of the proposed importation. It was agreed that Cavaliere would give Smith the sum of $10,000.00 as front money since neither Smith nor BRANDON had the funds to facilitate the proposed importation.

(f) The proposed importation would have been impossible without the participation of Detective Eugene Cavaliere by his supplying of the funds to carry off the importation scheme.

3. Where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is performed by and only by, the government agent, such persons may not legally be convicted of a conspiracy. See, King v. State, 104 So.2d 730 (Fla.1958).

4. There are no disputed facts and the undisputed facts do not present a prima facie case of guilt against the accused.

The State's demurrer added the following additional facts:

Prior to Det. Cavaliere meeting the Defendant at the Ramada Inn, Smith had advised Cavaliere that Brandon's participation in the transaction would be in the procurement of a plane and being present at the landing site where the marijuana was to be delivered. While Brandon was out of the motel room at the Ramada Inn, Smith and Cavaliere discussed in detail the transaction with the aid of a map of Columbia provided by Smith and Smith's handwritten notes. When Brandon returned to the room, the map was still clearly visible and discussions continued about the transaction, Brandon indicating he would go long with whatever Smith wanted to do. Brandon and Smith both asked how much tonnage Cavaliere could handle a month and Brandon stated he could dispose of approximately four or five tons a month for Cavaliere. The initial trip was to be for 1,000 pounds of marijuana. Cavaliere was to supply the funds for the trip to Columbia. All other aspects of the importation were to be carried out by Smith and/or Brandon.

The bases for appellee's motion to dismiss are: 1) that the undisputed facts do not present a prima facie case of guilt, and 2) that the rule of King v. State, 104 So.2d 730 (Fla.1958), precludes his conviction for conspiracy to possess cannabis. As to appellee's first point, we hold that the facts contained in the motion in conjunction with the State's demurrer are more than sufficient to set out a prima facie case of guilt against appellee. The elements of conspiracy require an agreement and an intent to commit the offense charged. Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979). Appellee was not only aware of the details of the proposed transaction, but indicated that he would "go along with whatever Smith wanted to do." He inquired as to how much tonnage Detective Cavaliere could handle a month and stated that he could dispose of approximately four or five tons a month. If appellee's first point were the only one before us, this appeal could be disposed of easily; however, appellee's second point forces us to confront a difficult question in light of the Florida Supreme Court's rule in King v. State.

It was obviously on the basis of the King decision that the trial court granted appellee's motion to dismiss. The portion of King at issue is the holding that

where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is to be performed by, and only by, such government agent, such persons may not legally be convicted of a conspiracy. (emphasis ours)

King v. State at 733.

In King, the facts reveal that almost all of the criminal...