State v. Glosson
| Decision Date | 17 January 1985 |
| Docket Number | No. 64688,64688 |
| Citation | 462 So.2d 1082,10 Fla. L. Weekly 56 |
| Parties | 10 Fla. L. Weekly 56 STATE of Florida, Petitioner, v. Boyce E. GLOSSON, Matthew A. Bronza, Robert C. Brooke, James P. Sheridan, Howard T. Smith, and Frances L. Gonzalez, Respondents. |
| Court | Florida Supreme Court |
Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for petitioner.
Robert G. Duval, North Miami, for Boyce E. Glosson.
Harvey Robbins, North Miami, for Robert L. Brooke, Matthew A. Brozyna and James P. Sheridan.
Harvie S. DuVal of Greenfield & DuVal, North Miami, for Harold T. Smith and Frances Lorraine Gonzalez.
Everett F. Jones, Tallahassee, amicus curiae, for the Florida Sheriffs Assn.
This case is before us to review State v. Glosson, 441 So.2d 1178 (Fla. 1st DCA 1983), which expressly construes a constitutional provision. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
The issue on review is whether the district court properly affirmed the dismissal of criminal charges because the payment of a contingent fee to an informant conditioned on his cooperation and testimony in criminal prosecutions violated the respondents' constitutional due process right. For the reasons expressed below, we approve the district court's decision.
The state charged Boyce E. Glosson and the five other respondents with trafficking in over 100 but less than 2,000 pounds of cannabis and with conspiring to traffic in over 100 pounds of cannabis. These charges resulted from a "reverse-sting" operation run by the Levy County Sheriff's Department through a paid informant, Norwood Lee Wilson. Wilson traveled to Dade County, where he agreed to sell several hundred pounds of cannabis to the respondents in Levy County. The respondents came to Levy County, took possession of the cannabis controlled by the sheriff, and were arrested soon afterward. As a result of the arrests, the sheriff seized several vehicles and over $80,000 in cash subject to civil forfeiture under sections 932.701-.704, Florida Statutes (1983).
The respondents filed motions to dismiss the information because of entrapment and prosecutorial misconduct. These motions relied primarily upon the agreement between the sheriff and Wilson whereby Wilson would receive ten percent of all civil forfeitures arising out of successful criminal investigations he completed in Levy County. The trial court held hearings on this issue and denied the motions to dismiss. The respondents filed further motions to dismiss which alleged that specific unethical conduct by the prosecutor had deprived them of their due process right. These charges included permitting the payment of a contingent fee to Wilson, a vital witness in a criminal prosecution, and failing to supervise Wilson properly after sending him out to make cases using government-controlled cannabis. A further hearing on these motions resulted in a stipulated set of facts for the trial court to dispose of the due process issue on a Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss rather than go to the expense of a trial and possibly have a directed judgment of acquittal on the same facts. The parties stipulated that each defendant had asserted an entrapment defense; that Wilson had an oral agreement with the sheriff, which agreement the state attorney's office knew about and even supervised Wilson's investigations; that Wilson would receive ten percent of all civil forfeiture proceedings resulting from the criminal investigations initiated and participated in by him; that the contingent fee would be paid out of civil forfeitures received by the sheriff; that Wilson must testify and cooperate in criminal prosecutions resulting from his investigations in order to collect the contingent fee; that this is one of those criminal prosecutions; and that Wilson must testify and cooperate in this case for there to be a successful prosecution. The trial court dismissed the information after finding that prosecutorial misconduct in this case had deprived the respondents of their right to due process.
The district court affirmed the dismissal, finding the constitutional due process issue to be a question of law for the trial court and holding that the contingent fee arrangement with Wilson violated the respondents' due process right. The district court relied on Williamson v. United States, 311 F.2d 441 (5th Cir.1962), in holding the respondents had been denied due process because Wilson's contingent arrangement seemed to manufacture, rather than detect, crime. The district court recognized that United States v. Joseph, 533 F.2d 282 (5th Cir.1976), cert. denied, 431 U.S. 905, 97 S.Ct. 1698, 52 L.Ed.2d 389 (1977), limited Williamson to those cases where contingent fees are paid for evidence against particular persons. Nevertheless, the district court found that the pervasive informant activity in this case came closer to the facts in Williamson than to the limited informant activity approved in Joseph.
The state contends that the district court erred in affirming the trial court's order dismissing the information. The state argues that the respondents' due process defense is both procedurally and substantively inapplicable in this case. We disagree with both arguments.
Two reasons require us to reject the state's argument that the due process defense in this case presents a credibility issue for the jury rather than a question of law which the trial court may decide on a rule 3.190(c)(4) motion to dismiss. The due process defense based upon governmental misconduct is an objective question of law for the trial court, as opposed to the subjective predisposition question submitted to the jury in the usual entrapment defense. United States v. Graves, 556 F.2d 1319 (5th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978); United States v. Quinn, 543 F.2d 640 (8th Cir.1976). The trial court had sufficient undisputed facts in the stipulation to determine as a matter of law that Wilson's contingent fee arrangement with the sheriff violated the respondents' due process right, compelling the dismissal of the information. The state's argument must also fail because the prosecutor agreed to the pretrial disposition of the due process issue to avoid a possible adverse ruling during a lengthy trial. The state may not now claim procedural error in a ruling it...
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State v. Johnson
...somewhat more aggressively by state courts. Paul Marcus, The Entrapment Defense § 7.11, at 308-14 (1989). See, e.g., State v. Glosson, 462 So.2d 1082 (Fla.1985) (applying due-process-entrapment defense based on sheriff's agreement to pay contingent fee of 10% of value of civil forfeitures t......
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Johnson v. Fla. Dep't of Corr.
...should have argued in support of dismissal of the charges in his case:Florida first recognized the due process defense in State v. Glosson, 462 So. 2d 1082 (Fla. 1985). In Glosson, the Eighth Circuit State Attorney's Office knew about and supervised the operations of an undercover informant......
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1997 -NMSC- 40, State v. Vallejos
...agreements with informants, by which a key witness has "what amounts to a financial stake in criminal convictions," see State v. Glosson, 462 So.2d 1082, 1085 (Fla.1985) (informant paid ten percent of civil forfeitures resulting from criminal convictions in cases where he was the prosecutio......
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State v. Globe Communications Corp., 91-3112
...defense designed to protect a defendant from being found guilty of a crime where the government instigated the conduct); State v. Glosson, 462 So.2d 1082 (Fla.1985) (due process defense to government misconduct); Smith v. State, 424 So.2d 726 (Fla.1982) (defense of withdrawal), cert. denied......