E-Copy Received Jun 25, 2014 3:53 PM
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GREGORY GUN,
Appellant,
vs.
CASE NO. 4D13-3509
STATE OF FLORIDA,
Appellee.
/
INITIAL BRIEF OF APPELLANT
On Appeal from the Circuit Court of the Seventeenth Judicial Circuit,
In and For Broward County, Florida
[Criminal Division].
CAREY HAUGHWOUT
Public Defender
15th Judicial Circuit of Florida
Criminal Justice Building
421 Third Street/6th Floor
West Palm Beach, Florida 33401
(561) 355-7600
[email protected]
TATJANA OSTAPOFF
Assistant Public Defender
Attorney for Appellant
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
AUTHORITIES CITED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
POINT
THE TRIAL COURT ERRED BY FINDING
APPELLANT VIOLATED HIS PROBATION BY
POSSESSING SYNTHETIC MARIJUANA.. . . . . . . . . . . . . . . . . . . 6
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF FONT SIZE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
i
AUTHORITIES CITED
CASES CITED
PAGE
C.M. v. State, 83 So.3d 947
(Fla. 3d DCA 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10
FLORIDA STATUTES
Section 893.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 893.03(1)(c) (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 10
Section 893.03(1)(c)46.-50. (2103). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 893.03(1)(c)51.-142. (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 893.13(6)(a) (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
OTHER AUTHORITIES CITED
H.R. Judiciary Comm.; Final Bill Analysis CS/CS/HB 1175; CS/CS/SB 1502
(March 26, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 8, 10
H.R. Criminal Justice Comm.; Final Bill Analysis CS/SB 780
(May 13, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Laws of Florida 2012-23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ii
PRELIMINARY STATEMENT
Appellant was the defendant and appellee the prosecution in the Criminal
Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward
County, Florida. In this brief the parties will be referred to as they appear before the
Court.
The following symbols will be used:
“R”
Record on appeal, followed by the appropriate volume and
page numbers
1
STATEMENT OF THE CASE AND FACTS
Appellant was charged with burglary of a dwelling (Count 1), possession of
screwdrivers as burglary tools (Count 2), obstruction of a law enforcement officer
without violence (Count 3) (R1/3-4). Upon Appellant’s entry of an open plea of no
contest to each of the charges against him (R1/25-27, 32), he was adjudged guilty of
burglary of a dwelling and possession of burglary tools (R1/42-43) and sentenced on
November 12, 2012, to serve two years on community control followed by two years
probation (R1/34-41).
On May 9, 2013, an affidavit was filed alleging that Appellant violated his
community control by failing to take his monitor with him as required (paragraphs 1
and 2) (R1/65). An amended affidavit alleged that he also violated the law by
committing the criminal offense of possessing synthetic marijuana (paragraph 3)
(R1/74).
At the hearing on the violation of probation, Appellant’s community control
supervisor, Brian Lawson, testified Appellant had called him to report that he
mistakenly left his monitor at home when he went to work (R2/12, 20). This
happened once (R2/21, 22). When Lawson had Appellant arrested at Lawson’s office
for violating his community control (R2/17), Lawson found a yellow package labeled
“fire” and “herbal incense” inside Appellant’s pocket (R2/18). Lawson believed that
2
the substance inside the package was synthetic marijuana (R2/18-19). Lawson never
tested the substance or had it analyzed by a lab (R2/23). Lawson admitted that “fire”
was used by people as an incense and that it could be used for “multiple purposes”
(R2/24).
Lawson testified that he went through a one-day course with the Drug
Enforcement Agency about synthetic cannabis, during which he touched and smelled
a substance identified to him as synthetic marijuana (R2/17-18, 25). The substance
was labeled “fire” (R2/26). Since then, he had come into contact with synthetic
marijuana 100 times “seeing the package” (R2/26).
Appellant’s employer of two years testified that Appellant was a good
employee (R2/29). The employer said that he had to pick Appellant up for work; he
had been present when Appellant forgot the monitor and his girlfriend ran out to give
it to him; and that Appellant called his probation supervisor, who yelled at the
employer (R2/30). The employer was willing to rehire Appellant if he were released
(R2/32).
After hearing the evidence, the trial court dismissed the violations alleged in
paragraphs 1 and 2 as not willful (R2/37). But the court denied Appellant’s motion
to dismiss paragraph 3 (R2/37-39) and found that Appellant violated his probation by
possessing synthetic marijuana (R1/93, 2/39). On September 10, 2013, Appellant’s
3
probation was revoked (R1/110) and he was sentenced to serve concurrent terms of
42.45 months in prison on Counts 1 and 2 (R1/99-101, 102-104). Appellant was
given credit on each sentence for 165 day already served. This disposition was
consistent with Appellant’s lowest permissible Criminal Punishment Code sentence
(R1/105-106).
Notice of appeal was timely filed on September 23, 2013 (R1/112, 116).
4
SUMMARY OF THE ARGUMENT
Synthetic marijuana is not included among the controlled substances proscribed
in Section 893.03, Fla. Stat. Testimony that the substance Appellant possessed was
synthetic marijuana could not establish that he violated his probation by possessing
a controlled substance as alleged in the affidavit of probation violation.
5
ARGUMENT
POINT
THE TRIAL COURT ERRED BY FINDING
APPELLANT VIOLATED HIS PROBATION BY
POSSESSING SYNTHETIC MARIJUANA.
The trial court found that Appellant willfully and substantially violated his
community control because he violated the law by possessing “synthetic marijuana,”
as alleged in paragraph 3 of the affidavit of community control violation (R1/74).
The only proof offered by the State in support of its allegation was the opinion of
Appellant’s community control supervisor that the herbal incense labeled as “fire”
was “synthetic marijuana,” based on the officer’s training. This testimony provided
no basis for concluding that Appellant possessed a controlled substance, as alleged.
In Section 893.03(1)(c), Fla. Stat. (2013), a controlled substance is defined as:
Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture, or preparation
that contains any quantity of the following hallucinogenic
substances or that contains any of their salts, isomers, and
salts of isomers, if whenever the existence of such salts,
isomers, and salts of isomers is possible within the specific
chemical designation.
The statute then lists 142 chemical substances, the possession of which is proscribed.
Section 893.13(6)(a), Fla. Stat. (2013).
6
“Synthetic marijuana” is not included within the substances defined as
controlled and therefore illegal in Section 893.03. Neither are “synthetic cannabis”
or even “synthetic cannabinoids.” The only place where mention of “synthetic
cannabinoids” (not synthetic cannabis, or synthetic marijuana) can be found is in the
legislature’s final bill analysis for the 2012 addendum to the statute. H.R. Judiciary
Comm.; Final Bill Analysis CS/CS/HB 1175; CS/CS/SB 1502 (March 26, 2012).1
Thus, the analysis mentions certain synthetic cannabinoids2 which are alternatively
named in the summary as “K2" or “Spice." The bill observes that in 2011, the
legislature had included five types of synthetic cannabinoid in Section
893.03(1)(c)46.-50., Fla. Stat. (2013).3 The 2012 legislation added 91 additional
1
HB 1175 was enacted in Laws of Florida 2012-23 and became effective March
23, 2012.
2
“Synthetic cannabinoids” are defined in the bill summary (not by the statute)
as “chemically engineered substances, similar to tertrahydrocannabinol (THC) – the
active agent in marijuana – that when smoked or ingested can produce a high similar
to marijuana.” H.R. Judiciary Comm.; Final Bill Analysis CS/CS/HB 1175.
3
These substances, included in the 2011 amendment of the statute, are:
!2-[1R, 3S) -3-hydroxycyclohexyl] -5-(2-methyloctan-2-yl) phenol, also
known as CP 47,497 and its dimethyloctyl (C8) homologue;
!(6aR, 10aR) -9- (hydroxymethyl) -6, 6-dimethyl-3- (2-methyloctan-2-yl) -6a,
7, 10, 10a-tetrahydrobenzo [c] chromen-1-ol, also known as HU-210;
!1-Pentyl-3-(1-naphthoyl) indole, also known as JWH-018;
7
substances to the list of controlled substances, Section 893.03(1)(c)51.-142. (2013).
These additional substances include both synthetic cannabinoids and bath salts, with
no legislative distinction between the two. It is the identification of one of these
specifically described substances, each of which is a different drug,4 that makes its
possession illegal.5
In the instant case, the only identification offered by the State was that the
substance possessed by Appellant was “synthetic marijuana,” a term which has no
legally recognized definition. The further description of the substance as packaged
!1-Butyl-3-(1-naphthoyl) indole, also known as JWH-073;
!1-[2-(4-morpholinyl) ethyl]-3-(1-naphthoyl) indole, also known as JWH-200.
4
The addition of these substances was deemed necessary because
According to the FDLE, over 90 chemicals related to
synthetic cannabinoids and bath salts have been discovered
that have no accepted medical use or a legitimate industrial
or commercial purpose. Although similar in structural
makeup, these chemical compounds differ by
rearrangement of the molecules, creating a different drug.
H.R. Judiciary Comm.; Final Bill Analysis CS/CS/HB 1175 at n. 19.
5
In 2014, the legislature amended Section 893.03(1)(c) to include four
additional “synthetic cannabinoids,” still given the alternative names of “K2” or
“Spice.” H.R. Criminal Justice Comm.; Final Bill Analysis CS/SB 780 (May 13,
2014). None of those additional substances are described as “synthetic marijuana,”
“synthetic cannabis,” or “synthetic cannabinoids” in the statute.
8
in a yellow container labeled “fire” and “herbal incense” (R2/18)6 does not establish
which, if any, of the actual proscribed substances it contained.
In fact, the
community control supervisor admitted that people use the incense in a harmless way
“to burn in their homes” “as an incense” (R2/24).
The proof offered by the State in the instant case was thus no more than that
deemed insufficient in C.M. v. State, 83 So.3d 947 (Fla. 3d DCA 2012). There,
school police found a green, leafy substance inside the child’s backpack. At trial, the
school police officer testified that he believed the substance, as well as some residue
found in an ear dropper, were marijuana because they looked and smelled like
marijuana. But the officer also agreed that synthetic marijuana looked the same as
marijuana, although it had a different smell. The child testified that the substance was
a synthetic marijuana called “Mr. Nice Guy.”
Based on this testimony, the trial judge found that the evidence was insufficient
to prove that the child possessed marijuana and not synthetic marijuana. Since, as the
State agreed, “synthetic marijuana is not a ‘controlled substance’ under Chapter 893,
Florida Statutes (2010),” the child’s motion to dismiss the charge of possession of
6
Although the community control supervisor said that he smelled and felt the
material, it appears that it was substantially on the basis of its labeling that he made
his identification. See R2/26. Yet that labeling does not even go as far as identifying
the substance as “K2" or “Spice.”
9
marijuana was granted. On appeal, the appellate court also reversed his adjudication
for possession of drug paraphernalia, holding that the evidence, including the child’s
testimony that he used the ear dropper to smoke synthetic marijuana was equally
insufficient to establish that the ear dropper was used to ingest marijuana.
In the present case, there was no contention that the substance possessed by
Appellant was actually marijuana. The only testimony was that it was “synthetic
marijuana.” As in 2010, synthetic marijuana is not now a “controlled substance,” as
defined in Section 893.03(1)(c). Moreover, the community control supervisor stated
that his department did not have the capability to test the package taken from
Appellant (R2/23).7 Thus, evidence sufficient to support a finding that Appellant
possessed a controlled substance based on the identity of the contents of the “fire”
7
The instant case therefore provides on object lesson for the warning contained
in the legislature’s fiscal analysis of HB 1175, that
The bill adds additional chemical substances to Schedule
1 of Florida’s controlled substance schedules. According
to FDLE, this could potentially increase the number of
evidence submissions into FDLE’s Crime Laboratory
System. The Lab System will need to acquire all of the
required standards necessary to test the proposed chemical
substances. . . .
H.R. Judiciary Comm.; Final Bill Analysis CS/CS/HB 1175 (“Fiscal Impact on State
Government”).
10
package could not have been produced by the State.
Appellant, through his counsel, moved to dismiss the allegation of probation
violation made in paragraph 3 of the affidavit:
It was never tested, so we don’t know what it was. . . . We
don’t know what it was because it was never tested. I
know the officer said he seen this before. The box was
open but it was never tested, I believe that count should be
dismissed.
(R2/36). And again:
. . .even if the officer felt that my client was taking
synthetic drugs, he was not tested. He never drug tested to
see if he had drugs. . . .There is no evidence here, This is
not an officer of the law. This is a probation officer. He
did not test the drugs, the item herbal incense.
THE COURT:
Whether you decide to use it for incense
or smoke it, you cannot possess it anymore.
MR. BRETT SAGER [prosecutor][sic]: There were no
pictures or nothing. Nothing brought in court today to
show packaging, similar packaging. No evidence provided
to substantiate that third claim. There were no pictures of
the box. Just that this was the usual packaging and never
tested. No evidence has been provided to substantiate the
third claim.
(R2/37-38). Appellant’s motion to dismiss was well-founded, and the trial court erred
by denying it and finding Appellant in violation of his probation.
11
CONCLUSION
Based upon the foregoing argument and the authorities cited therein, Appellant
requests that this Court reverse the judgment and sentence below and remand this
cause with directions to reinstate Appellant on probation.
Respectfully submitted,
CAREY HAUGHWOUT
Public Defender
15th Judicial Circuit of Florida
Criminal Justice Building
421 Third Street/6th Floor
West Palm Beach, Florida 33401
(561) 355-7600
[email protected]
/s/ Tatjana Ostapoff
TATJANA OSTAPOFF
Assistant Public Defender
Florida Bar No. 224634
Attorney for Appellant
CERTIFICATE OF FONT SIZE
I HEREBY CERTIFY that this brief has been prepared in 14 point Times New
Roman font, in compliance with Fla. R. App. P. 9.210(a)(2).
/s/ Tatjana Ostapoff
Assistant Public Defender
12
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been furnished to this Court by
e-mail and to Celia Terenzio, Assistant Attorney General, 1515 N. Flagler Drive,
ninth
floor,
West
Palm
Beach,
[email protected] this
Florida
25th
33401
e-mail
day of JUNE, 2014.
/s/ Tatjana Ostapoff
Of Counsel
13
by
at