DARYL DATE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Daryl Date appeals his convictions for possession of cannabis and conspiracy to traffic in cannabis. The Third District Court of Appeal affirmed the convictions but modified them to reflect lesser offenses based on the jury's ambiguous verdict and the state's concession of error regarding the conspiracy charge.
The ambiguous possession verdict can only stand if interpreted as a conviction for possession of less than twenty grams of cannabis (a misdemeanor), based on the jury's exercise of its pardon power in acquitting Date of trafficking. Date's conspiracy conviction must be reduced from a third-degree felony to a first-degree misdemeanor.
[1] A jury's acquittal on a greater offense, coupled with a conviction on a lesser included offense, may indicate the exercise of the jury's pardon power.
[2] When a jury's verdict on a possession charge is ambiguous regarding the quantity of the controlled substance, and the jury has exercised its pardon power by acquitting on…
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Join FLexlaw to unlock all legal intelligence“By acquitting the defendant of the charge of trafficking, it is apparent the jury exercised its pardon power.”
Establishes the legal principle that the jury's acquittal of trafficking while convicting of lesser possession indicates the jury exercised its discretionary pardon power.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDate was charged with trafficking in excess of 100 pounds but less than 2,000 pounds of cannabis and conspiracy to traffic in cannabis. Evidence showe…
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PER CURIAM.
The defendant appeals his conviction for possession of cannabis and conspiracy to traffic in cannabis. The convictions, as modified, are affirmed.
The defendant was charged with trafficking in excess of one hundred pounds but less than two thousand pounds of cannabis, § 893.135, Fla.Stat. (1987), and conspiracy to traffic in cannabis, § 777.04, Fla.Stat. (1987). He was acquitted of trafficking but convicted of possession of a simple unspecified amount of cannabis as well as a conspiracy to traffic in cannabis. The evidence adduced by the state disclosed that more than two hundred pounds of cannabis was involved in the transaction. The jury was given the standard instructions on lesser included offenses. However, it was in no way instructed or informed to differentiate between possession of in excess of twenty grams of cannabis or less than twenty grams of cannabis. The jury’s verdict with respect to the possession count was as follows:
We, the jury, Miami, Dade County, Florida, this 21 day of April, A.D., 1987, find the defendant, Daryl Date, as to possession of cannabis, a lesser included offense of count I of the information: Guilty.
By acquitting the defendant of the charge of trafficking, it is apparent the jury exer cised its pardon power. State v. Abreau, 363 So. 2d 1063 (Fla.1978). Under the circumstances, it is impossible for us to assay from the record whether the jury intended to exercise its pardon power in defendant’s favor with respect to possession of more than twenty grams or less than twenty grams of cannabis. The only way the ambiguous verdict can stand is to recognize that the jury, having exercised its pardon power, did so in the defendant’s favor and only intended to convict him of possession of less than twenty grams of cannabis. For this reason, we reduce the conviction to that of possession of less than twenty grams of cannabis, which constitutes a misdemeanor. § 893.13(1)(g), Fla.Stat. (1987).
We agree with the defendant’s second claim, and the state’s confession of error, that Date’s conviction for conspiracy to possess cannabis only warrants his adjudication as a first-degree misdemeanant, § 777.04(4)(d), Fla.Stat. (1987), rather than as a third-degree felon.
The remainder of the defendant’s contentions have been answered adversely to him in the appeal of a codefendant, see Rojas v. State, 523 So. 2d 1179 (Fla. 3d DCA 1988).
As modified, defendant’s convictions are affirmed.
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Citator
Cited By
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State v. Estevez, 753 So. 2d 1 (Fla. 1999)…o “pardon” a defendant by convicting the defendant of a lesser offense. See, e.g., Amado v. State, 585 So. 2d 282, 283 (Fla.1991); Potts v. State, 430 So. 2d 900, 903 (Fla.1982); State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978); Date v. [*5] State, 528 So. 2d 547, 547-48 (Fla. 3d DCA 1988). Further, as noted above, we have expressly rejected the same argument when advanced in firearm possession cases. For example, in Hargrove, the Fourth District, much like the Third District here, “reluctantly reversed” th…
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Estevez v. State, 713 So. 2d 1039 (Fla. 3d DCA 1998)…v. State, 434 So. 2d 945 (Fla. 4th DCA 1983), quashed in part, approved in part, 457 So. 2d 1385 (Fla.1984). This burden is part and parcel of the state’s burden of producing sufficient evidence to convict the defendant. Here, as in Date v. State, 528 So. 2d 547 (Fla. 3d DCA 1988), we cannot determine whether the jury’s failure to make a specific finding as to the amount of cocaine the defendant was found guilty of trafficking in was an exercise of the jury’s inherent power to pardon defendant. Therefore, w…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Rojas v. State, 523 So. 2d 1179 (Fla. 3d DCA 1988)