5D00-3536 Lyons v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-3536

Case Date: 01/28/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

SAMUEL LYONS, Appellant, v. Case No. 5D00-3536

STATE OF FLORIDA, Appellee. / Opinion Filed February 1, 2002 Appeal from the Circuit Court for Brevard County, Jere E. Lober, Judge. James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, J. Following a traffic stop based on a window tint violation, officers discovered, hidden in a cereal box in a grocery bag in the back seat, two bricks of powdered cocaine, weighing together, 813.4 grams. The appellant was a passenger in the vehicle; his girlfriend was the driver. The appellant was eventually convicted in a jury trial of trafficking in cocaine in an amount in excess of 400 grams. While he raises three issues in this appeal, we find only one

merits discussion. The appellant argues that, because the cocaine was randomly tested only after the contents of the two bags were commingled, there was insufficient evidence to support his conviction for trafficking in greater than 400 grams of cocaine. Specifically, appellant notes the combined weight of the substance found in the two bags was 813.4 grams, that his trafficking conviction was for possession of 400 grams or more, but that because of the commingling, there was no way for the jury to reasonably conclude that one of the bags contained at least 400 grams of a substance containing cocaine.1 It has been found with respect to powder cocaine wrapped in separate containers, that a sample must come from each container in order to have the amount in each container included in the total alleged amount of contraband. Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1988). For rock, or crack cocaine, however, this rule against such commingling does not exist. Collins v. State, 717 So. 2d 186 (Fla. 5th DCA 1998) (sufficient evidence to support conviction for trafficking of at least 28 grams of cocaine where 30 to 40 bags of crack cocaine involving total quantity of 196.5 grams were commingled into single bag for testing at lab); Bond v. State, 538 So. 2d 499 (Fla. 3d DCA 1989) ("The gravaman of Ross was its recognition that a variety of powdery white substances resemble cocaine in powder form.

The penalty for one found to be in possession of greater than 400 grams but less than 150 kilograms of a mixture containing cocaine includes a fine of $250,000 and a minimum mandatory of 15 years.

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