State v. Milbro, 90-01763
| Decision Date | 02 October 1991 |
| Docket Number | No. 90-01763,90-01763 |
| Citation | 586 So.2d 1303 |
| Parties | STATE of Florida, Appellant, v. Carlos MILBRO, Appellee. 586 So.2d 1303, 16 Fla. L. Week. D2584 |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wendy Buffington, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and William Pena Wells, Asst. Public Defender, Bartow, for appellee.
The state appeals the trial court's dismissal of the charge of solicitation to deliver a controlled substance. We find merit in the state's argument that the court erred in finding the defendant not guilty on the basis that the substance offered was not in fact cocaine.
The defendant was charged with soliciting to deliver cocaine on March 2, 1990. He filed a motion to dismiss alleging there were no material facts in dispute and that the undisputed facts did not make a prima facie showing of Defendant's guilt. 1 The facts alleged in the motion were: (1) the defendant came into contact with Deputy Green, who was working in an undercover capacity for the purpose of engaging in narcotics transactions; (2) the defendant requested an "eighty piece" from Deputy Green; (3) Deputy Green then produced a wax and soap substance to give to the defendant in exchange for $80; and (4) the defendant was then placed under arrest and charged with solicitation to deliver cocaine. At the hearing on the motion, the state demurred. The court granted the defendant's motion, relying on Jordan v. State, 560 So.2d 315 (Fla. 1st DCA 1990). It reasoned since the substance Green showed the defendant was not actually cocaine, the defendant was not guilty of the crime charged.
There is a critical distinction between Jordan and the instant case. In Jordan, the defendant was charged with solicitation to purchase a controlled substance. If the defendant did not have real cocaine, he knew he was not soliciting anyone to purchase a controlled substance. Therefore, he could not have the requisite intent to solicit a person to commit that crime. In the instant case, the defendant was charged with soliciting the delivery of a controlled substance. Under the Jordan analysis, even though Green was incapable of delivering cocaine, if the defendant had the requisite intent to solicit Green to deliver cocaine, then the defendant is guilty.
To set forth a prima facie case of solicitation, the state must allege that the actor, State v. Gaines, 431 So.2d 736, 737 (Fla. 4th DCA 1983). The information alleged the defendant ...
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The Florida Bar v. Marable
...1975).7 E.g., Metcalf v. State, 614 So.2d 548 (Fla. 4th DCA 1993), reversed on other grounds, 635 So.2d 11 (Fla.1994); State v. Milbro, 586 So.2d 1303 (Fla. 2d DCA 1991); State v. Johnson, 561 So.2d 1321 (Fla. 4th DCA 1990); Jones v. State, 466 So.2d 293 (Fla. 3d DCA), review denied, 478 So......
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Metcalf v. State, 92-0885
...in order to convict the potential buyer of solicitation. E.g., State v. Johnson, 561 So.2d 1321 (Fla. 4th DCA 1990); State v. Milbro, 586 So.2d 1303 (Fla. 2d DCA 1991). The crime of solicitation is completed prior to any purchase or delivery. All of the elements of a solicitation are presen......
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Cook v. State, Case No. 2D04-4835 (FL 2/2/2005), Case No. 2D04-4835.
...v. State, 29 Fla. L. Weekly D2619 (Fla. 2d DCA Nov. 19, 2004); Emmett v. State, 764 So. 2d 675 (Fla. 2d DCA 2000); State v. Milbro, 586 So. 2d 1303 (Fla. 2d DCA 1991). FULMER, DAVIS, and VILLANTI, JJ., NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. ...