State v. Smail
| Decision Date | 24 September 1976 |
| Docket Number | No. 76--486,76--486 |
| Citation | 337 So.2d 421 |
| Parties | STATE of Florida, Appellant, v. Larry SMAIL, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellant.
Wilbur C. Smith, III, Smith & Carta, Fort Myers, for appellee.
In STATE V. SNAIL, FLA.APP.2D, 1975, 323 SO.2D 626,1 this court affirmed an order dismissing a charge of sale of marijuana but reversed the dismissal of two counts charging possession of marijuana and psilocybin. Following remand, the court entered an order suppressing evidence of the marijuana and psilocybin which was in Smail's possession at the time of his arrest. The state now appeals this order.
The pertinent facts of this case are discussed in more detail in our previous opinion. Suffice it to say, we affirmed a dismissal of the sale charge because it was apparent that the state was unable to furnish a witness who could dispute Smail's sworn statement that he had been entrapped into making the sale. At the same time, we reinstated the information on the possession charges because there was no evidence in the record from which we could conclude as a matter of law that the state had lured Smail into possession of the narcotics. The premise upon which the court below then entered its order of suppression was that the evidence seized was a direct result of the 'illegal entrapment activities' referred to in our prior opinion. We find it necessary to reverse this order.
In our opinion we included the following quotation from Koptyra v. State, Fla.App.2d, 1965, 172 So.2d 628, which sets forth the applicable law on the defense of entrapment to possess contraband.
'In determining whether or not there is evidence tending to prove entrapment, the distinction to be observed on the facts in this case is whether there was evidence tending to show that the inspector enticed the defendant to possess the marijuana in question when the defendant would not have possessed it without such enticement, thus showing the requisite elements, or whether the defendant, while engaged in the unlawful enterprise of possession of marijuana, was merely enticed to possess it in the presence of the inspector so that his possession could be proven by direct evidence.'
Admittedly, it is the law of the instant case that Smail was entrapped into making the sale of marijuana, but can it be said as a matter of law that he was entrapped into possessing it, or to put it another way, that he would not have possessed it without the enticement of the law enforcement officers? Reference to Smail's affidavit which is quoted in our prior opinion reflects that in the course of the undercover agent's efforts to get him to make the sale, Smail admitted that he had some marijuana. When Smail finally succumbed to the agent's persuasion, they went to Smail's house where the sale took place. A search warrant was later obtained, and the...
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Marrero v. State, 84-1138
...from the second district: English v. State, 301 So.2d 813 (Fla. 2d DCA 1974), cert. dismissed, 312 So.2d 747 (Fla.1975); State v. Smail, 337 So.2d 421 (Fla. 2d DCA 1976); and Beasley v. State, 354 So.2d 934 (Fla. 2d DCA 1978), see discussion infra n. 2. The prosecution against the defendant......
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State v. Smail, 76-1843
...possessing. The state filed an interlocutory appeal on March 24, 1976. The order of suppression was ultimately reversed. State v. Smail, 337 So.2d 421 (Fla.2d DCA 1976). The trial court received our mandate on October 15, The case was set for trial on November 8, 1976. However, at a hearing......
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Vaughan v. State, 78-1431
...PER CURIAM. Affirmed. See Castor v. State, 365 So.2d 701 (Fla.1978); Beasley v. State, 354 So.2d 934 (Fla.2d DCA 1978); State v. Smail, 337 So.2d 421 (Fla.2d DCA 1976); English v. State, 301 So.2d 813 (Fla.2d DCA ...
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...or intimidation.3 Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).4 Wong Sun, Supra.5 State v. Smail, 337 So.2d 421 (Fla.2d DCA 1976). ...