Opinion
No. 73-363.
March 8, 1974. Rehearing Denied April 9, 1974.
Appeal from the Circuit Court, Orange County, Peter M. de Manio, J.
Richard S. Rhodes, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed. See Betancourt v. State, Fla. App. 1969, 228 So.2d 124.
WALDEN and MAGER, JJ., concur.
OWEN, C.J., dissents with opinion.
Appellant was convicted of conspiracy to sell cannabis to one, Sheets, as alleged in the information. The evidence established that Sheets was at the time a police officer acting in the line of duty. Because the conspiracy charged was to sell to Sheets (not merely to sell generally to any buyer), he necessarily was an essential ingredient to the specific conspiracy charged. Thus, appellant could not legally be convicted of this conspiracy. King v. State, Fla. 1958, 104 So.2d 730; Cruz v. State, Fla.App. 1965, 181 So.2d 20, cert. den., 189 So.2d 882 (Fla.) In my opinion, the judgment should be reversed and appellant discharged.