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Safford v. State

District Court of Appeal of Florida, Second District
Apr 8, 1998
708 So. 2d 676 (Fla. Dist. Ct. App. 1998)

Summary

holding that where powder cocaine is separately packaged the State must prove that each package contained cocaine before the contents of that package may be considered in establishing the requisite weight for trafficking

Summary of this case from Calvo v. State

Opinion

No. 97-01174

Opinion filed April 8, 1998.

Appeal from the Circuit Court for Pinellas County; Brandt C. Downey, III, Judge.

Robert Dillinger, Public Defender, and Dwight Wolfe, Assistant Public Defender, Clearwater, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann Pfeiffer Corcoran, Assistant Attorney General, Tampa, for Appellee.


Appellant challenges his judgment and sentence for trafficking in cocaine by possessing twenty-eight or more grams of cocaine in violation of section 893.135(1)(b), Florida Statutes (1995). We agree with appellant's argument on appeal, that the trial court erred in denying his motion for judgment of acquittal because the State failed to establish that he possessed the requisite amount of cocaine in order to be found guilty of trafficking. We, therefore, reverse and remand to the trial court with instructions to reduce appellant's conviction to simple possession of cocaine and to sentence appellant accordingly.

The evidence at trial showed that the State calculated the total weight of the contents of two bags of narcotics seized from appellant's residence to meet the quantitative criteria of the trafficking statute. One bag contained rock cocaine and the other bag contained forty individually wrapped foil packets of alleged powder cocaine. The contents of the forty individual packets were combined by the investigating officer into one mixture so that it could be tested by the police chemist. Appellant correctly cites to Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988) in support of his argument that such commingling was error.

In Ross, the Third District held that random testing of suspect drugs found within a single packet is permissible as long as each packet is tested. In the instant case, we conclude that the analysis performed on the random samples of rock cocaine was proper because all the material is similar in appearance and commingled in a single bag. See Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982). The testing of the powder cocaine mixture, however, is distinguishable in that there are many white powdery substances which can resemble powder cocaine. Therefore, the chemist's failure to test each individual packet before the contents were combined and weighed mandates reversal. See Ross;Bond v. State, 538 So.2d 499 (Fla. 3d DCA 1989).

Reversed and remanded with instructions.

PARKER, C.J., and LENDERMAN, JOHN C., ASSOCIATE JUDGE, Concur.


Summaries of

Safford v. State

District Court of Appeal of Florida, Second District
Apr 8, 1998
708 So. 2d 676 (Fla. Dist. Ct. App. 1998)

holding that where powder cocaine is separately packaged the State must prove that each package contained cocaine before the contents of that package may be considered in establishing the requisite weight for trafficking

Summary of this case from Calvo v. State

In Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998), our court condemned this practice and concluded that combining the contents of a number of packets into one mixture to meet the quantitative element of the trafficking statute was error.

Summary of this case from Sheridan v. State

In Safford, this court did not read Ross to impose such a requirement, instead stating that the flaw in the State's case was "the chemist's failure to test each individual packet before the contents were combined and weighed...."

Summary of this case from Sheridan v. State
Case details for

Safford v. State

Case Details

Full title:BERNARD D. SAFFORD, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Apr 8, 1998

Citations

708 So. 2d 676 (Fla. Dist. Ct. App. 1998)

Citing Cases

Greenwade v. State

See State v. Clark, 538 So.2d 500, 501 (Fla. 3d DCA 1989). Applying the rationale in Ross, the Second…

Greenwade v. State

See State v. Clark, 538 So. 2d 500, 501 (Fla. 3d DCA 1989). Applying the rationale in Ross, the Second…