LAMONT FULLER

v.

THE STATE OF FLORIDA

* * * * *

NOT FINAL UNTIL TIME EXPIRES

TO FILE RE-HEARING MOTION, ‘

AND, IF FILED DISPOSED OF

IN THE CIRCUIT comm" OF THE ELEVENTH JUDICIAL cmcun; IN _, AND FOR MIAMI-I_)ADE %;_coégN11', --1

FLORIDA

? .:. =- S-W? J L13 ' - 7'5‘- f)¢-3 - an,- . n ~' :0..- ..., LAMONT FULLER; , ==?- ' Appellant,

APPELLATE DIVISION

I sz sea ‘,- .‘ - '1 . _n O _ ' CASE NUMBER: 10-351 -1, -. '

TRIAL COURT CASBNCT

09-21309 ' THCESTATE OF FLORIDA_ O W _ ’ Appollee. ' - i ’ ' - t Opinion filed: Jimmy s . ,2o12. V ' ' ‘ ' On appeal fiom-the County Court for Miami-Dado Cmmty, Victoria clel Pino, Judge. Carlos I. Martinez, Public Defender, and Harvey Sepler, Assistant Public Defender, Miami, for Appellant. ' . ' - _ ' - " Katherine Fernandez Rmdle, Attorney General, and Gianlna Dimitriou, Assistant ' Attorney General, Miami, for Appellee. . Before BROWN and SCHUMACHBR, JJ. -

PER CURIAM.

- _ Appellant Lamont Fuller (“Fuller”) hppeals fiom gm order finding him guilty of a , . probation violation for selling or delivering cocaine with intent to sell. He argues, and we agree, that them is insufficient evidence from which the trial court could have concluded that Fuller violated his probation. _w@havejurisdiction. m R. App. P. 9.oso(<>)(1)(A). ~ Page 1 Of⁴ __.»...._,.-.__i_. - _ _. [*2] | -i i| w-.-.u=.¢~_.1_-.|.—-_.|.l_.:_r<— ._~<_i _____ ? __.,___.._._-»,.,__. ._ I i s | | I l H t I ll Fuller was arrested on one count of selling or delivering cocaine with intent to sell. At the probation violation hearing, the State called 0_£ficer Andrade, who witnessed the events leading to Fuller’s arrest. Otficcr Andrade testified that while conducting narcotics surveillance, fiom a distance often to fifteen yards away and using binoculars, he observed a Cadillac parked in fiont of an apartment complex and saw a white male get out ofthe Cadillac and approach a black male who was standing in the stairwell of the apartment complex. The white male handed what appeared tc-be money to the black male; the black male received the money, and went up the stairs where he met Fuller.‘ The oflicer then witnessed Fuller exit an apartment and hand the black_ male vdmt was, in his opinion, crack cocaine. Therealter, the black male went back down and handed the substance to the white male, who was later stopped and crack cocaine was recovered in the vehicle. The officer testified that he worked as a narcotics detective for six to seven months, had made over filly prior arrests for crack cocaine, and has undergone specialized _

V.

;, _ in recognizing different types of narcotics, including crack cocaine. Based on this testimony, the trial court found that the State met its burden of proving that Fuller violated his probation by a preponderance ofthe evidence, and that Fuller was selling or delivering cocaine with intentto sell. ' . 7 ' " An appellate court reviews the trial court's revocation of probation under an abuse of discretion standard. Russell v. State, 982 So. 2d 642, 646 (Fla. 2008). Before the trial court can exercise its discretion to revoke probation, the State must establish a violation of probation by the greater weight ernie evidence.‘ See eerily v. Slate, cs sh. 3d cos, 611 (Flal 2s non 2011). The sole issue on appeal is the adequacy ofthe Statc’s proof regarding the identification ofthe substance as crack cocaine. “The state may prove the identity of a controlled substance -by ' Otficer Andrade also testitied that the heard someone yell=“hards,” which he understood fiom his experience to mean crack. ' _ g . _ Page 2 of⁴ i i [*3] L- --_.--.-P?-__- ‘I ,--_- F I l \ circumstantial evidence such as the substmiceh appearance, odor, and packaging, by the circunistances under which the substance was seized; the manner by which the substance was being transported, a person's on-the-scene remarks identifying the substance; and circumstances surrounding the sale or use ofthe substance.” Pama v. State, 552, Sc. 2d 309, 311 (Fla. 2d DCA 1989) (citations omitted). Based upon his viewpoint fioma distance of ten to fifteen yards, the officer testified that, in his opinion, the substance was crack cocaine. The State relied on this opinion to satisfy its burden that itprove by a preponderanceof the evidence that the substance was cocaine. No testimony was presented on other facts identifying the substance, such as the substa_nce’s appearance, color,and packaging, nor the circumstances under which the substance seized from the vehicle was similar to the substance the officer witnessed Fuller deliver to the black 111810. ~ 4 s- A sufiioientiy experienced officer may opine regarding the idcntityof crack cocaine. -Slinclairv. State, 995 So. 2d 552 (Fla. 3d DCA 2008), review denied, 8 So. 3d 358 (Fla. 2009).’ However, the Sinclair court stated that "for such a lay identification to be proffered, the suspect substancemust possess adistinctive set ofphysical characteristics that render it amenable to non- | . . chemical identification, and the witness identifying the substance must possess an experiential background sufficient for the court to conclude that his or her identification is reliable.” Id. at 556. While the trial court found the oiiicer in the instant case sufficiently experienced to express his opinion regarding the identitji of a substance, the ofl-icei"s lack of visual examination and - ,_ .< long been willing to allow experienced law enforcement personnel to identify substances such as marijuana without resorting to chemical analysis. Sinclair, 995 So. 2d at 555 (citing Puma, 552 So. 2d at 311). While marijuana identification is a settled issue, the acceptance of nonscientific crack cocaine identification is more recent, first noted in .Brookr v. State, 762 So. 2d 879 (Fla. 2000). Id. . 1' Y 'Page30f4 V V ' <.:-.1-to ______':-:"--- ..,._..t.: ‘l It .-,_... E 1:- I t t t t *. lack of testimony regarding the physical characteristics of the substance were insufficient to demonstrate that the substance was crack cocaine. - ' We conclude that the greater weight or preponderance ofthe evidence prwented at the revocation hearing-did not establish that Fuller sold or delivered cocaine with intent to sell. Because the officer failed to either identify specific characteristics of the substance, or link the crack cocaine recovered fi‘om the vehicle to the substance the officer witnessed during the surveillance, it was not established that the ofiicer could independently identify the substance with_sufficient~reliability to support a‘finding that Fuller was guilty of a probation violation. See Bernhardt v. State, 288 So. 2d 490, 495 (Fla. l974) (the evidence upon which to predicate a revocation introduced at the hearing must be sufficient to satisfy the conscience of the court that a- condition of probation has been violated). Accordingly, the Order on Probation Violation . ~ L ' Hearing ishcreby REVERSED; the adjudication of guilt and the sentence are VACATED, and this matter is REMANDED for further proceedings consistent with this opinion. _ ' I‘ ?i"

comes FURNISHED T0 couiérset. on RECORD ANDto ANY PARTY NOT REPRESENTED BYcoutrseu - ' Page4of⁴ u I a

E.

! I ~; E i | I [*5] ! |'l -.;;:.;Lt.__ I: i" ! I ..-.,-.. I it lack of testimony regarding the physical characteristics of the substance were insufficient to demonstrate that the substance was crack cocaine. _ . ' We conclude that the greater weight or preponderance of the evidence presented at the *1'evocation hosting-did not establish that Fuller sold or delivered cocaine with intent to sell. Because the officer failed to either identity specific characteristics of the substance, or link the creek cocaine recovered from the vehicle to the substance the oflicer witnessed during the surveillance, it was not established that the ofiioer could independently identify the substance vvith_suffieient~re1iability to support afinding that Fuller was guilty of a probation violation. See ‘Bernhardt v. Stale, 288 So. 2d 490, 495 (Fla. 1974) (the evidence upon which to predicate a revocation introduced at the hearing must be sufficient to satisfy the conscience of the court that a- condition of probation has been violated). Accordingly, the Order on Probation Violation Hearing isherebv nevnnsnn, the adjudication of guilt inn me sentence are vncnrno, and this matter isnmvmunno for timber proceedings consistentwith this opinion. _ ’

COPIES FURNISHED TO CQUNSEL

OF RECORD ANDTO ANY PARTY

NOT REPRESENTED BY COUNSEL

- ' Page⁴ of⁴ I l I | | 1? __.-n.-..._. i