State v. Cristodero
| Decision Date | 29 December 1982 |
| Docket Number | No. 82-102,82-102 |
| Parties | STATE of Florida, Appellant, v. Peter CRISTODERO, John James Rossi, and William Peter O'Donnell, Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellees-Rossi and Cristodero.
Robert C. Stone and Craig K. Satchell of Stone, Dell & Schaefer, P.A., Hollywood, for appellee-O'Donnell.
The State seeks reversal of an order dismissing an information charging the appellees, Cristodero, Rossi, and O'Donnell, with conspiracy to traffic in cannabis and also charging appellee Rossi with possession of a firearm while engaged in a criminal offense.
The uncontroverted facts are set forth in the orders appealed from. Paraphrased, the facts are that a Fort Lauderdale police officer, Kotrady, while in New York, met appellee Cristodero. During a conversation about Fort Lauderdale, Cristodero inquired about the price of marijuana in Fort Lauderdale. Cristodero advised Kotrady that he went to Fort Lauderdale from time to time and bought a truck load of marijuana. Kotrady gave Cristodero his number and some months later Cristodero called him inquiring about the possibility of a drug buy. Negotiations between the two ensued and a meeting was arranged at a local restaurant. During the meeting, Cristodero requested that Kotrady add ten cents a pound to the asking price without Cristodero's partners' knowledge, so that Cristodero could make a little extra on the deal. The following day they met again and Cristodero introduced Kotrady to appellees Rossi and O'Donnell. Kotrady advised them he had a bale of marijuana in the trunk of his car; so the group repaired to Kotrady's car to view the sample bale of marijuana. There, they discussed the product and possible future drug deals. Arrangements were then made to meet at another restaurant to consummate the deal. At the appointed time, after the arrival of Kotrady and another undercover agent, Cristodero arrived driving a van, which he parked next to Kotrady's vehicle. Shortly thereafter, a Cadillac arrived bearing Rossi and O'Donnell. Kotrady advised them he had the load of marijuana but wanted to see the money. At O'Donnell's direction, Rossi opened the Cadillac trunk by a button inside the car and O'Donnell showed the officers a suitcase containing $240,000. After a second viewing of the money by the other agent, who allegedly was the real seller, a signal was given to the back-up team of officers and they moved in and arrested appellees.
Motions to dismiss were filed by Rossi and O'Donnell contending that the material facts upon which the prosecution was based were not in dispute and those facts did not prove a prima facie case of guilt. Cristodero's motion did not assert this ground, but contained other alleged deficiencies in the information. A hearing on said motions resulted in the order under review. The trial court ruled that, upon authority of King v. State, 104 So.2d 730 (Fla.1958), and State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981), the uncontroverted facts were insufficient to convict appellees. We, of course, cannot quarrel with the holding in King because it is a determination by our Supreme Court, albeit a four to three decision. However, we are convinced that reliance on that case by appellees and the trial court is misplaced. We are of the view that the factual situation presented herein renders the King rule inapplicable.
Two of the subsequent cases analyzing the holding in King are relevant to the present case and, at the risk of tedium, we will quote generously therefrom.
In the King case, three police officers of the City of Miami, King, Carberry, and Monroe, were charged with conspiring with Moscovitz and with one another to violate statutes relating to the unlawful keeping or maintaining a place for the purpose of gambling and bookmaking. The information alleged that the defendants planned to set up Moscovitz in the business of illegal bookmaking in a hotel room and that the defendants would protect Moscovitz from arrest for all of which Moscovitz would compensate them. The evidence showed that the violations of the gambling laws alleged in the information were to be committed by law enforcement agent Moscovitz, not by defendants. A jury found King and Monroe guilty, but on certiorari the Supreme Court of Florida reversed. The Court pointed out that the defendants were not charged with conspiracy to accept unlawful compensation; they were charged with conspiring to violate the state gambling laws but the proof showed that the agreement was that Moscovitz alone, not the defendants, was to commit the crimes. More importantly, the evidence did not support the charge that the defendants conspired with each other to commit the gambling offenses. Therefore, the Court held the convictions invalid, stating:
We hold, therefore, with what appears to be the weight of, if not the only, authority, 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. 104 So.2d at 733.
The Second District Court of Appeal, in State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981), had occasion to analyze the King case in the following fashion:
In King, the facts reveal that almost all of the criminal activity was performed by the police agent. The agent agreed to commit the offense of gambling and bookmaking; to keep and maintain the hotel room with public funds; and to provide protection money for the corrupt police with public funds. The court noted that although the information charged that the defendants conspired with each other as well...
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