Lamanto v. State, 547 So. 2d 1248

Lamanto v. State

547 So. 2d 1248 | Fla. Dist. Ct. App. | 1989

Concurrence Opinion

ANSTEAD, Judge,

specially concurring.

I concur in the affirmance of appellant’s conviction because I believe that is a correct result under the prevailing law. The appellant has presented an interesting point, however. He contends, with some logic, that he never really had dominion and control over the drugs in question, because the drugs were owned and produced by the police, and the police never intended to let him leave the car with the drugs. Indeed, armed police officers had *1250the car, the drags, and appellant within their “control” at all times. In reality, the appellant was guilty of purchasing illegal drags, an offense I believe the legislature contemplated under the trafficking statute despite the lack of the word “purchase” in the statute. Ordinarily, a purchaser takes “possession” of the drugs he pays for and that “possession” is sufficient, in my view, to constitute a violation of the trafficking statute. It is that possession that appellant, the purchaser, had here when he was arrested.

Lead Opinion

STONE, Judge.

We affirm the defendant’s conviction of trafficking in cocaine. The defendant asserts that he was not in possession of the cocaine because he did not have dominion and control over it, citing Garces v. State, 485 So.2d 847 (Fla. 3d DCA 1986).

Here, the defendant negotiated with an undercover detective to purchase a kilo of cocaine. They agreed upon terms and met in the detective’s car. Lamanto handed thirty two thousand dollars, the agreed price, to the detective, who in exchange handed the defendant a bag containing the cocaine. Lamanto cut open the bag, placed some cocaine on his finger, and tasted it. He then placed the cocaine inside his tote bag and closed it. The door was opened and the defendant was in the process of stepping out of the car when he was arrested.

This evidence was sufficient to prove actual possession. The trial court did not err in denying appellant’s motion for judgment of acquittal. The fact that arresting officers do not intend to let a defendant get away and therefore prevent him from leaving the scene does not preclude a finding of possession. Cf. Angel v. State, 450 So.2d 292 (Fla. 4th DCA 1984); Stanley v. State, 451 So.2d 897 (Fla. 4th DCA 1984).

We consider Garces v. State to be inap-posite. There, the defendant had only momentary possession in the presence of the owner, for the sole purpose of examining the drugs in order to determine that they were what they were purported to be. Here, the defendant had the right to possession and control and physically exercised that right.

We also find no error in the denial of defendant’s requested jury instruction.

AFFIRMED.

LETTS, J., concurs. ANSTEAD, J., concurs specially with opinion.