Welker v. State

• Decision Date: 01 April 1987
• Docket Number: No. BN-105,BN-105
• Citation: Welker v. State, 504 So.2d 802, 12 Fla. L. Weekly 918 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 918 Paul A. WELKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 802

504 So.2d 802

12 Fla. L. Weekly 918

Paul A. WELKER, Appellant, v. STATE of Florida, Appellee.

No. BN-105.

District Court of Appeal of Florida First District.

April 1, 1987.

Leo A. Thomas, of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant.

John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Paul Welker appeals his conviction and sentence for violating section 893.13(1)(a), Florida Statutes (1985) based on the unlawful sale, delivery, or possession of cocaine with intent to distribute. Appellant raises two issues on appeal. First, he contends that the trial judge's reasons for departing from the sentencing guidelines were invalid. Second, he contends that a tape recording of two telephone conversations between him and a confidential informant was improperly admitted during his trial. Finding merit to both points, we reverse.

Appellant was charged with trafficking in cocaine after he sold 35 grams (about 1 1/4 ounces) of cocaine to an undercover deputy sheriff. At the time of appellant's arrest approximately 1/4 ounce of additional cocaine was found in the back seat of his vehicle. A clear glass vial containing liquid cocaine was found in appellant's pocket, as was a pill bottle containing several butalbital pills. At the time of his arrest appellant was accompanied by two relatives. One of his relatives had a weapon, but since appellant was not charged with possession of a firearm the court granted appellant's motion in limine to prohibit the state from mentioning the weapon at trial. Appellant had no criminal record prior to this offense.

At trial, appellant contended that he had been entrapped by Joe Baggett, the confidential informant, acting in concert with deputies in the sheriff's department. The state played a tape recording of two telephone conversations between Baggett and the appellant as part of its evidence at trial. A deputy sheriff present when the telephone calls were made testified that Baggett had consented to the calls being taped. Baggett did not testify at trial.

The jury found appellant guilty of the lesser included offense of possession, sale, or delivery of cocaine with intent to distribute and the court entered judgment in accordance with the jury verdict. The court departed from the guidelines recommendation of any non-state prison sanction and sentenced appellant to four years imprisonment followed by two years probation, stating four reasons for departure:

1) The amount of cocaine involved in the actual delivery to the undercover officer was 35 grams, well in excess of the threshold amount needed to sustain conviction for a lesser included offense to trafficking in cocaine.

2) Additional amounts of cocaine were found on defendant's person and in his vehicle at the time of arrest. These substances were found in the more common granular form and in the less common liquid form. Furthermore, two other persons and a firearm were found in the vehicle at the time of defendant's arrest. These additional circumstances evince the degree of sophistication in which defendant operated and collectively justify departure.

3) Prior to his arrest but during the delivery of the 1 and 1/4 ounces of cocaine to the undercover officer, defendant stated his readiness to deliver an additional 6 ounces of cocaine to the officer. This circumstance warrants departure as well.

4) Defendant's trial testimony and statements to the probation officer who prepared the pre-sentence investigation report acknowledges prior possession and use of cocaine and marijuana. These episodes signify to the Court defendant's disregard of the law and the need for imposition of a sentence with some deterrent effect. A lesser sentence would not be commensurate with the seriousness of the defendant's offense.

Addressing appellant's first point on appeal, we conclude that each of these reasons is invalid. While some decisions have disapproved departure based on the quantity of drugs involved, see, e.g., Newton v. State, 490 So.2d 179 (Fla. 1st DCA 1986); Jimenez v. State, 486 So.2d 36 (Fla. 2d DCA 1986); Gallo v. State, 483 So.2d 876 (Fla. 2d DCA 1986), other decisions have approved departure where the amount of drugs the defendant possessed far exceeded the amount required for conviction of the offense, see, e.g., Atwaters v. State, 495 So.2d 1219 (Fla. 1st DCA 1986); Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984), petition for review denied, 464 So.2d 556 (Fla.1985). But none of those decisions have defined a uniform legal criteria for determining at what level the amount of drugs possessed would permit departure. Here, appellant was exonerated of the charge of trafficking in more than twenty-eight grams of cocaine ¹ but found guilty of the charge of sale or possession ² upon proof that he sold thirty-five grams. We conclude that this amount of drugs is not sufficiently excessive for purposes of the offense involved to serve as a valid reason for departure under the circumstances of this particular case. We acknowledge the apparent diversity of views on this subject, see the discussion in Newton v. State, 490 So.2d 179, and find it most difficult if not impossible to harmonize all of the decisions on this question. Accordingly, as in Atwaters v. State, 495 So.2d 1219, we certify to the supreme court the following question of great public importance:

MAY THE AMOUNT OF DRUGS POSSESSED BY THE DEFENDANT BE USED AS A REASON FOR DEPARTURE FROM THE SENTENCING GUIDELINES IN A PROSECUTION FOR UNLAWFUL POSSESSION OF DRUGS, AND IF SO, UNDER WHAT CRITERIA OR CONDITIONS?

Regarding the second reason for departure, appellant was not convicted of possession of a firearm or possession of other drugs, so these reasons are invalid as "factors relating to the instant offenses for which convictions have not been obtained." Fla.R.Crim.P. 3.701(d)(11). The trial court's reliance on Mullen v. State, 483 So.2d 754 (Fla. 5th DCA 1986), is misplaced. Mullen involved facts showing that the defendant was a professional, full-time drug smuggler. Even assuming that the facts recited by the trial judge could properly be considered, they are insufficient to support a conclusion that appellant was a professional drug smuggler.

The third reason given by the trial court, defendant's readiness to deliver more drugs, is also an invalid reason. In Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA 1984) it was stated that:

the judge's reasoning that the appellant 'could have' been convicted of [more] counts is speculative. Speculation as to what the appellant might have done in the future is not a clear and convincing reason for departure from the guidelines.

Assuming appellant offered to deliver additional cocaine to the police officer, whether he could or would have done so is speculative, and thus not a clear and convincing reason for departure.

The state admits that the fourth reason given by the trial judge, the need for greater deterrent effect, is invalid.

As all four of the reasons given for departure are invalid, we find it necessary to vacate appellant's sentence.

Appellant's second contention, that it was error to admit the tape recording into evidence without Baggett's testimony that he consented to the taping of the conversation with appellant, is based directly on the Florida Supreme Court's decision in Tollett v. State, 272 So.2d 490 (Fla.1973). In that case the supreme court held that, as a necessary predicate to the admissibility of a tape recording of a conversation between a confidential informer and a defendant, the informer must take the witness stand and testify that he consented to the recording of the conversations. The supreme court reasoned that allowing the tape recording to be admitted without requiring the informant to testify "eliminates an accused's opportunity to cross-examine the alleged informant.... [g]enerally, it furthers the invasion of privacy by the police, encourages wiretapping, entrapment and manufactured evidence." 272 So.2d at 495.

In this case Baggett, the confidential informant, did not testify at trial, so the Tollett requirement was not met. The state argues, however, that Tollett is no longer the law of this state because the 1982 amendment to Article I, § 12, of the Florida Constitution provides that the right to protection against unreasonable search and seizure found in the Florida Constitution is now governed by federal law:

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

The state argues that because the United States Supreme Court decision in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), is inconsistent with the holding in Tollett, a confidential informer need no longer testify at trial in a Florida state court to establish his consent to the taping of a conversation.

In Tollett, the Florida Supreme Court considered, and rejected, the argument that the plurality holding in White was controlling. The court declined to apply the result in White for several reasons. First, noting that Article I, § 12, expressly protects against "the unreasonable interception of private communications by any means," whereas the federal constitution contains no such explicit provision, the court concluded that "In Florida, at least, the protection of privacy in the area of communications is constitutionally mandated in express language. This court is not at liberty to relax this protection afforded by the State Constitution." 272 So.2d at 493. The court also discussed § 934.01(4), Florida Statutes, which serves to further implement the quoted...