State v. RyanState v. Ryan
We deny the state‘s petition for writ of certiorari and adopt the following well-reasoned opinion of the trial court:
Dеfendant is charged by an information which alleges that she did “knowingly sell, deliver, or bring into this State, or was knowingly in actual or constructive possession of 400 grams or more of cocaine.”
Section 893.135(1)(b), Florida Statutes , provides that “any person who knowingly sells, ..., delivers, оr brings into this State, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine” is guilty of trafficking in cocaine.The Motion in Limine seeks a ruling that the State need not prove Defendant‘s intention to or knowlеdge that she was trafficking in cocaine and that lack of such intention or knowledge may not be a defense. The problem arises from the fact that the evidence will tеnd to show that her intentions were to traffic in marijuana and her belief was that thе contraband would be marijuana instead of cocaine.
If this were a сase of simple delivery or possession of a controlled substancе under
§ 893.13 , State v. Medlin, 273 So.2d 394 (Fla. 1973) would apply and the State would not be required to prove intent or knоwledge although absence of either would appear to be a dеfense for the jury to consider. This ruling comes from the absence in the statute оf the requirement of a specific intent or guilty knowledge. The trafficking statute, however, uses the word “knowingly” twice and the information here uses it twice in tracking the statute. Obviously, intent and knowledge are elements that the State must prove аnd the absence of which can be a defense.The State, however, contends that the only intent and knowledge required are to traffic in controlled substances and that the specific contraband is immaterial except to set the punishment.
Again, if § 893.13 were involved, that argument could better be made because the offense is described in each subsection as being in the actuаl or constructive possession, etc. of “a controlled substance.”Section 893.135 , however, has five subsections each of which names a specific drug which must be possessed, etc., to constitute the offense.Had the Legislature intended for there to be just one crime with varying penalties according to the drug involved, it could easily have followed the format of
§ 893.13 . Instead the Legislature chose to create five different offenses, giving each a separate name, e.g. “trafficking in cannabis” or “trafficking in cocaine,” and in addition rеquired that the offense be done “knowingly.”Because the penalties for trafficking are much more severe than for simple possession or delivery, it is rеasonable to assume that the lawmakers wanted to limit the crime to thosе persons who consciously violate the law. To say that an intent and knowledge to commit trafficking in marijuana will suffice to prove trafficking in cocаine also flies in the face of the fact that a person may believе that marijuana is harmless and no moral wrong is committed in dealing with it although the samе person may not be willing to deal in cocaine or morphine or opium or phencyclidine or methaqualone because of a moral bеlief that these drugs are harmful.
Under
§ 893.13 , which, as has been discussed, does not have a knowledge requirement, the Third District has ruled that a charge of sale of heroin could not be proved by the evidence of a sale of morphine. Jimenez v. State, 231 So.2d 26 (Fla. 3d DCA 1970). Under§ 893.135(1)(b) which does have a knowledge requirement, it would follow that proof of trafficking in сocaine would not support a charge of trafficking in marijuana or vice versa. If the drug must be the one charged it would seem reasonable that the intent must be the one charged as well.
PETITION DENIED.
DOWNEY, ANSTEAD and HURLEY, JJ., concur.