State v. Liptak
| Decision Date | 04 April 1973 |
| Docket Number | No. 42055,42055 |
| Citation | 277 So.2d 19 |
| Parties | The STATE of Florida, Petitioner, v. Donald Joseph LIPTAK and Cesar Augusto Cepeda, Respondents. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., William, L. Rogers, and J. Robert Olian, Asst. Attys. Gen., for petitioner.
Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for respondents.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at256 So.2d 548. The decision sought to be reviewed creates conflict with prior decisions on two distinct points, giving this Court jurisdiction under § 4, Article V of the Florida Constitution, F.S.A.
Respondents, defendants below, Donald Joseph Liptak and Cesar Augusto Cepeda, were charged in one count of an information with sale of an hallucinogenic drug (LSD) and in a second count with possession of the same drug. On trial before the Court without a jury they were found guilty on the first count. The possession charge, count two, was dismissed as to Liptak and adjudication of guilt was withheld as to Cepeda.
At the trial defendant Cepeda raised entrapment as a defense, but defendant Liptak did not. Cepeda moved for a judgment of acquittal based on entrapment and filed an assignment of error on the issue of entrapment. Liptak presented two motions for judgment of acquittal, a motion to suppress evidence and a motion for new trial, as well as assignments of error and supplementary assignments of error, but without mention of the defense of entrapment.
The District Court reversed the judgments of conviction and remanded with directions to discharge the defendants. The opinion of the District Court is, in pertinent part, as follows: 1
The decision of the District Court creates conflict on two distinct points. First, the District Court's consideration of the defense of entrapment on appeal as to defendant Liptak, despite the fact that entrapment was not raised by Liptak at the trial level or assigned as error on appeal, creates conflict with Redditt v. State; 3 Belger v. State, 4 and Haverty v. State. 5
The second point of conflict is the holding of the District Court that the facts, as summarized supra in the District Court's opinion, were sufficient as a matter of law to establish the defense of entrapment requiring the discharge of both defendants. On this point there is conflict with State v. Rouse, 6 and Koptyra v. State. 7 In Rouse, supra, a civilian clothed deputy sheriff on assignment as an undercover agent, posed as a photographer and was invited into defendants' van where he began shooting some film. When the deputy indicated that he would like to film 'somebody sitting on the canal banks smoking marijuana' defendants produced hand-rolled marijuana cigarettes and the deputy photographed them. The trial court suppressed the evidence on the ground of entrapment. The District Court reversed the order of suppression and remanded the cause, holding: 8
'One who is instigated, induced or lured by an officer of the law, for the purpose of prosecution, into the commission of a crime, which he had otherwise no intention of committing may avail himself of the defense of entrapment. However this defense is not available if the officer acted in good faith for the purpose of detecting a crime and merely furnished an opportunity for the commission thereof by one who had the requisite criminal intent.
'The law is settled that entrapment is a question for the jury unless the evidence is so clear and convincing that it can be passed on by the trial judge as a matter of law.'
In the instant case, defendants were known drug offenders. Both defendants had previously been charged with possession of illegal drugs and it had already been determined that they would enter pleas of guilty to such possession. The District Court in its statement of facts indicates that, though able to make the sale when first approached, defendants 'had not been inclined to make the sale' but were influenced to do so by the added consideration. Liptak testified that the reason for his initial reluctance to become involved in the drug sale was the drug charge already outstanding against the defendants.
Shortly after the defendants agreed to sell 100 cubes of LSD to the disguised police officer, the defendants produced the illegal drug. Both defendants assured the disguised officer that they were ready, willing and able to supply whatever large quantities of unlawful drugs he might desire to purchse on a regular basis.
Comparing the facts in the instant case with those in the Rouse case, supra, the best that can be said for the defense of entrapment in both cases is that the facts presented a question for the jury or judge sitting as the finder of fact. The facts in the instant case, either as summarized in the opinion of the District Court, or as revealed by the record in the case, do not establish the defense of entrapment as a matter of law.
In Koptyra v. State, supra, a drug possession case, the District Court of Appeal, Second District, found the evidence insufficient to raise the issue of entrapment. The elements of entrapment and burden of adducing evidence on those elements, are explained by the Court in Koptyra as follows: 9
'One who is instigated, induced or lured by an officer of the law into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of entrapment. Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent.
'While the state always has the burden of proving the guilt of accused beyond a reasonable doubt and the accused never has the burden of proving his innocence, nevertheless, the burden of adducing evidence on the defense of entrapment is on the accused unless the facts relied on otherwise appear in evidence to such an extent as to raise in the minds of the jury a reasonable doubt of guilt.'
As stated in the Koptyra case, an essential element of the offense of entrapment is inducement by police leading to the commission of the crime by one who otherwise had no intention of committing the crime. Inducement or instigation is to be distinguished from the...
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State v. Perez
...was a knowing agent of the police for whose inducing conduct the State would unquestionably be responsible, see, e.g., State v. Liptak, 277 So.2d 19 (Fla.1973), even if the police were unaware of the conduct. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). Ac......
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State v. Brider
...question is whether these facts constituted entrapment as a matter of law. Ordinarily, entrapment is a jury question. State v. Liptak, 277 So.2d 19 (Fla.1973). Nevertheless, the Florida courts have recognized that entrapment can exist as a matter of law. Smith v. State, 320 So.2d 420 (Fla. ......
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State v. Sokos, 82-153
...this case as to the defendant's ready acquiescence and his intent to distribute. Ordinarily, entrapment is a jury question. State v. Liptak, 277 So.2d 19 (Fla.1973). Though Florida courts have recognized that entrapment can exist as a matter of law, Smith v. State, 320 So.2d 420 (Fla. 2d DC......
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Rotenberry v. State
...doubt instruction. 3 Initially, we note that the final sentence of instruction 3.04(c) reflects this Court's holding in State v. Liptak, 277 So.2d 19, 22 (Fla.1973): While the state always has the burden of proving the guilt of [the] accused beyond a reasonable doubt and the accused never h......