Statutes updated from Official Statutes on: January 26, 2022
The crimes in §§ 893.1351(1). and 893.1351(2), Fla. Stats. are not necessary lesser included offenses because they have an element that is 1101 present in § 893.1351(3), Fla. Stat. Specifically. § 893.1351(1) and (2). Ha. Stats., require that the place will be used for certain drug-related activity while § 893.1351(3). Fla. Stat. requires that the place way being used to manufacture a controlled substance. See Zeigler V. State, 198 So.3d 1005 (Fla. 1st DCA 2016).
Section 893.1351(2) contains two separate elements regarding knowledge that the State must prove to obtain a conviction. First, the State must establish that the accused's possession of the place, structure, trailer, or conveyance was undertaken "knowingly." Id. Second, the State must also prove that such possession was undertaken "with the knowledge" that the place, structure, trailer, or conveyance will be used for a prohibited purpose as described in the statute. Id.; see Notice, Amendments to Jury Instructions, Fla. Bar News, Jan. 15, 2017, at 21 (proposing a new jury instruction 25.13(g) for the offense set forth in section 893.1351(2)). I will refer to the first element as the "conscious purpose" requirement and the second element as the "guilty knowledge" requirement.
At issue in this case is whether Delgado–George's actions violated section 893.1351(2). Section 893.1351(2) provides, in pertinent part:
George Norwood was convicted of trafficking of a controlled substance, i.e., morphine, in violation of section 893.135, Florida Statutes (2017), and of knowing possession of a conveyance used for trafficking in violation of section 893.1351, Florida Statutes (2017). He appeals only the latter conviction, relying upon the concept of fundamental error based upon a claimed lack of evidence. We affirm his conviction, and explain why below.
Defendant, Bobby Lee Zeigler, raises issues regarding his convictions on multiple counts, including the charge that he violated section 893.1351(2), Florida Statutes, which criminalizes the possession of a place, structure, or conveyance knowing that it “will be used” in the trafficking, sale, or manufacture of a controlled substance that is meant for sale or distribution to others. Zeigler's trial counsel did not object (or provide an alternative) to the jury instruction on this charge, which stated:
A special instruction will be required if the defense is that the defendant did not know of the illicit nature of the controlled substance. See § 893.101, Fla. Stat. § 893.1351(1), Florida Statutes, requires that the place will be used for certain drug-related activity while § 893.1351(3), Florida Statutes, requires that the place was being used to manufacture a controlled substance. See Zeigler v. State , 198 So.3d 1005 (Fla. 1st DCA 2016).
Section 893.1351(2), Florida Statutes (2016), provides that "[a] person may not knowingly be in actual or constructive possession of any ... conveyance with the knowledge that the ... conveyance will be used for the purpose of trafficking in a controlled substance." (Emphasis added.) " ‘[W]ill be used’ is the operative language of section 893.1351(2). Thus ... the focus should be on the use of the vehicle in the sale. In other words, the true intent at issue under the statute is the use the accused intended for the vehicle." Delgado-George v. State, 125 So.3d 1031, 1033-34 (Fla. 2d DCA 2013) (alteration in original).
For the sixth issue, Jenkins argues the court's oral pronouncement found him in violation of condition 5 of probation for committing a law offense not charged in the violation of probation affidavit. See Grant v. State , 137 So. 3d 436, 436 (Fla. 4th DCA 2014) ("It is well settled that the written order of revocation of probation must conform to the oral pronouncements made at the revocation hearing by the trial judge." (quoting Harrington v. State , 570 So. 2d 1140, 1142 (Fla. 4th DCA 1990) )); Harrington , 570 So. 2d at 1142 (stating that a "defendant's probation may not be revoked for conduct not charged in the affidavit alleging a violation of probation" (citing Moser v. State , 523 So. 2d 783 (Fla. 5th DCA 1988) )). The court orally found Jenkins guilty of possessing a home used for trafficking or sale of controlled substances. See § 893.1351( 2), Fla. Stat. (2018). But the violation of probation affidavit charged Jenkins with "owning, leasing, or renting" the home, which is a different criminal offense. See § 893.1351( 1), Fla. Stat. (2018). Despite this error, the record is clear that the circuit court would have revoked probation and imposed the same…
In Delgado-George, the defendant was pulled over during a traffic stop and admitted to the officer that he was on his way to a local bar to sell marijuana. 125 So.3d at 1033. This court held that a judgment of acquittal should have been granted because there was no evidence that the vehicle was a necessary component of the intended drug sale or that there was anything "unique about th[e] vehicle that would indicate its intended use was to traffic, sell, or manufacture controlled substances." Id. at 1034. This court concluded that the State failed to show that a crime was committed under section 893.1351(2) because the evidence was insufficient to prove a nexus between the defendant's intent to sell and the use of the vehicle. Id.
Applying these factors, I cannot conclude that the forfeiture of Farley's property is grossly disproportional to the gravity of his offense. Clearly, the Legislature considered Farley's offenses to be serious transgressions. As charged, he faced up to forty-seven years in prison. Two of the charges, manufacturing cannabis within 1,000 feet of a school and ownership or possession [of property] for trafficking in or manufacturing a controlled substance, can hardly be considered insignificant, as both are second-degree felonies punishable by up to fifteen years in prison and carry with them fines of $10,000. See §§ 893.13(1)(c); 893.1351(2), Fla. Stat. (2008). The Legislature has also made clear that real property used in the commission of the felonies described above is contraband subject to forfeiture under the FCFA. See §§ 893.12(2)(b); 932.701(2)(a)6., Fla. Stat. (2008).