Opinion
No. 91-1429.
May 13, 1992.
Appeal from the Circuit Court, Broward County, Paul L. Backman, J.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Michelle A. Smith, Asst. Atty. Gen., West Palm Beach, for appellee.
We affirm the defendant's judgment. Appellant was charged with the unlawful act of purchase of a controlled substance pursuant to section 893.13(1)(e) and (1)(a)1, Florida Statutes (1989). Hence, his argument that he thought he was purchasing one controlled substance — marijuana — when he actually purchased another controlled substance — cocaine — is immaterial. Knowledge of the particular nature of the controlled substance is not a required element of a charge of purchase under section 893.13(1)(e) or (1)(a)1, Florida Statutes. See State v. Ryan, 413 So.2d 411 (Fla. 4th DCA), rev. denied, 421 So.2d 518 (Fla. 1982).
However, as both parties request, we remand as to his sentence with direction to correct the written sentence to conform with the trial court's oral pronouncement at the sentencing hearing. At the sentencing hearing, the trial court imposed the three year minimum mandatory sentence. The written sentence reflects a sentence of three and one-half years. The trial court's written sentence must conform with its oral pronouncements at the sentencing hearing. McBee v. State, 581 So.2d 1009, 1010 (Fla. 4th DCA 1991); Kord v. State, 508 So.2d 758 (Fla. 4th DCA 1987).
GLICKSTEIN, C.J., concurs.
STONE and FARMER, JJ., concur specially with opinions.
I concur separately in order to address one aspect of the appellant's brief. The appellant was convicted of the purchase of cocaine within 1,000 feet of a school (hereafter the schoolyard statute). The trial court gave the standard jury instruction on the schoolyard statute, which does not refer to a defendant's knowledge of the presence or nature of the offending substance. The trial court denied a defense request for a statement in the instruction that the defendant must have knowledge of the presence of an illegal substance. The trial court had instructed the jury on the elements of simple purchase as a lesser included offense of the schoolyard statute. The charge on simple purchase, as given, included an instruction that the state must prove the defendant had knowledge of the presence of the illegal substance. The state does not challenge the appellant's contention that a lack of knowledge "defense" may be raised to a charge of simple purchase of a controlled substance. I note in that regard, that, here, the state is relying on presence of the cocaine as evidence of appellant's guilt.
Here, the evidence shows that the defendant placed the cocaine in his mouth after receiving it from an undercover officer. It is also undisputed that he was buying a controlled substance, although he contends that by asking for a "dime" bag he was seeking marijuana, not cocaine.
The state asserts, inter alia, that the wording of the schoolyard statute precludes an instruction on knowledge of presence of an illegal substance, even if presence is included in the instruction on the underlying offense of purchase. The state reasons that such a charge is not permitted because knowledge is not an element mentioned in the schoolyard statute.
In my judgment, a trial court should grant a party's request that the court refer to the elements and applicable definitions of an underlying offense at the time the court gives instructions on the greater offense. I recognize that no "knowledge" element is set forth in the applicable standard jury instructions, on the lesser offenses of purchase or sale. The standard jury instructions on drug offenses only refer to "knowledge" as an element in the charges involving "possession." Possession charges generally contain a specified element that the defendant have knowledge of the "presence" of a controlled substance. Also, a standard jury instruction "note" states, "if the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973)." (emphasis added) The jury instruction note, however, makes no reference to knowledge of "presence."
I do not address whether knowledge of presence was properly included in the instruction given on purchase, since it is not in issue. I concur in affirming appellant's conviction because the trial court fully instructed the jury on the simple purchase offense. Here, any error in not repeating an aspect of the lesser charge at the time of the instruction on the schoolyard statute was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
Hassoun was charged with purchasing cocaine within 1,000 feet of Dillard High School, contrary to sections 893.13(1)(a)1, and (1)(e), Florida Statutes (1989). He had stopped his car and gestured to an undercover officer to approach the car. He told the officer "I want a dime," to which the officer responded by giving him a clear plastic bag containing rock cocaine. He gave the officer a $10 bill, and ten to twenty seconds later (or so) he was arrested attempting to swallow the cocaine, which he spat out into the officer's hands.
At his trial he testified that when he said "I want a dime," he meant marijuana, not cocaine. He then requested a jury instruction to the effect that knowledge is an element of the offense of purchase of cocaine under both of the statutes charged, but the court instead gave the standard instruction under section 893.13(1)(e), which does not require knowledge. A verdict of guilty was later returned.
Sections 893.13(1)(a)1 and (1)(e) are identical, except for the "schoolyard" element. In particular, subsection (1)(a) says:
All references to the statute in this opinion are to section 893.13, Florida Statutes (1989), because Hassoun's purchase took place in October 1989. There does not appear to be any change in the text of the 1991 statutes for any of the provisions discussed in this opinion.
it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with intent to sell, purchase, manufacture, or deliver, a controlled substance.
Subsection (1)(e), in relevant part, says:
it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell, purchase, manufacture, or deliver, a controlled substance.
and proceeds to add the "schoolyard" element. Because identical language was used, both of these provisions should be read in the same way as to the knowledge issue.
In State v. Medlin, 273 So.2d 394 (Fla. 1973), the supreme court considered a conviction where the defendant gave another person a capsule that would make her "go up" and, when arrested, had two other such capsules in his possession. He was convicted of violating a statute that made it unlawful to deliver any barbiturate except as permitted by the statute and of having actual possession of a barbiturate or any drug controlled by the statute. The statute lacked the words "knowingly", "intentionally" and their equivalent. In substance, the statute was identical to section 893.13(1)(a) and (1)(f).
The court's opinion addressed the problem as to when knowledge is an essential element of a criminal statute. The court held:
In this discussion when I refer to the element of "knowledge", I am of course referring to the concept of "guilty knowledge", "criminal knowledge", "scienter" or "mens rea". I distinguish this kind of knowledge from the more generalized kind of "knowledge" covered by the concept of general intent to do a certain act. The two kinds of "knowledge" are not the same thing in a criminal case, and should not be confused. See State v. Oxx, 417 So.2d 287, 290-91 (Fla. 5th DCA 1982). In a malum prohibitum crime, such as purchase or possession of a controlled substance, the state can be required, if the issue is raised, to prove the general intent to do the act charged, even though proof of "knowledge", i.e. criminal intent or scienter or mens rea (or whatever formulation of the concept is used), is not required.
The Florida cases set out the rule that where a Statute denounces the doing of an act as criminal without specifically requiring criminal intent, it is not necessary for the State to prove that the commission of such act was accompanied by criminal intent. It is only when criminal intent is required as an element of the offense that the question of "guilty knowledge" may become pertinent in the State's case.
Applying that principle of construction of criminal laws to the above statutes, I conclude that if the charge is, as here, simple purchase, then specific knowledge of the substance is not an element of the crime charged. If, on the other hand, the charge is possession with intent to purchase, then specific knowledge of the substance is an element of the crime charged. Thus, there is no entitlement to a specific knowledge instruction for a charge of simple purchase; but there is an entitlement to a specific knowledge instruction if the charge is possession with intent to purchase.
The difference is not in whether the charge is under subsection (1)(a), or instead under (1)(e) (the schoolyard statute), but whether the charge is simple purchase, as opposed to possession with intent to do one of the prohibited acts of selling, purchasing, manufacturing or delivery. The real meaning of the citation to Medlin in the note to the standard jury instructions, therefore, does not lie in whether a schoolyard is nearby, but in whether the defendant has put his general intent to do the act into question. Here, defendant did not deny that he intended to purchase a controlled substance. Instead he sought to prove that he really intended to purchase one controlled substance instead of another. Thus, his request for a specific knowledge instruction was properly denied.
To illustrate why he was not entitled to a jury instruction on guilty knowledge with that defense, defendant poses the question whether we would find an innocent purchaser of a used automobile with cocaine residue in the trunk guilty of purchasing or possessing the controlled substance. Defendant supposes too much. In that hypothetical, the purchaser's defense is in the lack of a general intent to do the act charged, not a defense of lack of criminal knowledge of the precise substance found.
I also agree with the rest of the panel that our recent decisions in Kelly v. State, 593 So.2d 1060 (Fla. 4th DCA 1992) and Grissett v. State, 594 So.2d 321 (Fla. 4th DCA 1992), do not apply to this case. There is no evidence in this record that the cocaine sold was crack cocaine manufactured by the Sheriff. In fact the only record evidence on the subject is that the cocaine sold was taken from cocaine seized in a prior arrest of another person.
I thus concur in affirming the conviction. I also join in the remand to correct the sentence.