Fleming v. State
2011 Fla. App. LEXIS 18667
Fla. Dist. Ct. App.2011Background
- Fleming appeals a judgment and sentence on two charges, including possession of cocaine, and challenges the denial of his motion for judgment of acquittal on the cocaine charge.
- Deputies encountered Fleming by an abandoned building; he discarded a crack cocaine pipe that was recently used, which was recovered.
- A field test on the pipe indicated presence of narcotics; the pipe was admitted into evidence.
- Forensic chemist Bacigalupi testified she performed two tests, found cocaine in the pipe, and stated that residue was too small to weigh and that samples remained in the lab.
- The trial court denied the motion for acquittal, citing Marrisette; on appeal, the Fourth District en Banc receded from Marrisette and affirmed the denial.
- Fleming also filed a motion for rehearing en banc raising Shelton v. Secretary, Department of Corrections as to constitutionality; the court denied rehearing en banc on that basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there sufficient evidence to convict for possession of cocaine when cocaine is not weighed, but a chemist testifies cocaine was present? | Fleming | State | Yes; Bacigalupi's positive cocaine findings support conviction |
| Should Marrisette control, or has the court properly receded and adopted a new standard? | Fleming | State | Court receded from Marrisette; testimony suffices for conviction |
| Whether the Shelton issue was properly considered on rehearing en banc? | Fleming | State | Rehearing en banc denied; Shelton issue not considered |
Key Cases Cited
- Marrisette v. State, 780 So.2d 1020 (Fla. 4th DCA 2001) (previous rule requiring explanation of unavailability of cocaine)
- Peterson v. State, 841 So.2d 662 (Fla. 4th DCA 2003) (substance must be admitted unless destroyed during testing)
- G.E.G. v. State, 417 So.2d 975 (Fla. 1982) (controlled substances evidence admissibility when available)
- Trinidad v. State, 615 So.2d 806 (Fla. 3d DCA 1993) (requirement that substances be admitted into evidence if available)
- Johnston v. State, 863 So.2d 271 (Fla. 2003) (de novo standard for sufficiency review)
- Shelton v. Secretary, Dept. of Corrections, 802 F. Supp. 2d 1289 (S.D. Fla. 2011) ( Shelton analysis on mens rea in possession offenses)