419 So. 2d 1042 | Fla. | 1982
This cause is before the Court on appeal of a circuit court judgment in which section 893.135, Florida Statutes (1979), was upheld against constitutional challenge. Our jurisdiction was invoked under former article V, section 3(b)(1), Florida Constitution (1972). Appellate proceedings in this case were stayed pending the decision in State v. Benitez, 395 So.2d 514 (Fla.1981). In that case we upheld the challenged statute. Jurisdiction of this case was retained, however, for the purpose of resolving another question raised by the appellant.
Appellant was charged by information with violating section 893.135(l)(b)2., Florida Statutes (1979),
Appellant argues that to accuse a person of delivery of illegal drugs for consideration is the same thing as to charge sale of the illegal drugs. He argues further that since he was in effect charged with sale and did not receive a jury instruction on attempted sale, his conviction must be reversed.
Appellant relies on several cases, including Milazzo v. State, 377 So.2d 1161 (Fla.
Appellant relies on the common usage and understanding that delivery and consideration are both important elements of a sale. However, such authority is of little value in the application of clear statutory definitions and does not require us to hold that one charged with “delivery for consideration” is charged with the crime of sale. The state argues that the information charged appellant with delivery, and that the words “for consideration” were merely surplusage. In support of this argument, the state points out that the instructions given to the jury, and the verdict returned, were phrased in terms of “delivery,” and the element of consideration was not mentioned. Thus the state concludes that this case is unambiguously one of delivery and not of sale. Although we detect some concern on the part of the state to avoid the negative consequences of alleging sale (i.e., the defendant is entitled to an attempt instruction), by drafting an ambiguous charging document, we do not find its position so inconsistent as to be unacceptable. We again state that we would discourage this tactic. The state should charge the accused with either delivery or sale, depending on the apparent facts to be proved.
Appellant asserts that under Lomax v. State, 345 So.2d 719 (Fla.1977), overruled in part, State v. Abreau, 363 So.2d 1063 (Fla.1978), the failure to instruct the jury on attempted sale was per se reversible error. The state responds by correctly noting that Lomax has been modified to the extent that it was inconsistent with the new Schedule of Lesser Included Offenses contained in the Florida Standard Jury Instructions in Criminal Cases (1981). See In Re Standard Jury Instructions in Criminal Cases, Nos. 57,734 & 58,799 (Fla. April 16, 1981). If the appellant had indeed been charged with sale, the state’s argument continues, so that the court would have erred in not charging on attempt, appellant would be entitled to an attempt instruction on retrial only if such an instruction were supported by some evidence. See Burney v. State, 402 So.2d 38 (Fla.2d DCA 1981). The parties disagree on
The state argues in the alternative that if indeed appellant was charged with and convicted of sale, then he was also convicted of delivery, because delivery is a necessary element of every sale. While we need not reach the merits of this argument, it does point out the weaknesses in the statutory scheme that have given rise to this controversy and to the one in Milazzo. Sale and delivery are separate offenses with separate definitions. It takes more of an evidentiary showing to prove sale than delivery, because the element of consideration must be established. But the two offenses are assigned equal culpability. Therefore, the legislature has provided no. incentive for prosecutors to charge and prove the crime of sale, because the equally culpable crime of delivery can be more easily proved and carries identical penalties.
A further definitional problem has been briefly referred to already and was discussed in Milazzo: the discrepancy by which one accused of sale is entitled to an attempt instruction if there is evidence to support it but one accused of delivery is never entitled to an attempt instruction. The prosecutor in the present case admitted that the charge of “delivery for consideration” was drafted with the intention of denying the defendant the possible benefit of an attempt instruction. It seems to us that these problems can only be cured legislatively.
We hold that appellant was charged with delivery and that the trial court was correct in refusing to instruct the jury on attempted sale. The judgment of conviction is therefore affirmed.
It is so ordered.
. (1) Except as authorized in this chapter or in chapter 500:
(b) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, as described in s. 893.03(2)(a), is guilty of a felony of the first degree, which felony shall be known as “trafficking in cocaine.” If the quantity involved:
2. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 5 calendar years and to pay a fine of $100,000.
. Milazzo v. State, 359 So.2d 923, 924 (Fla.3d DCA 1978).