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Norwood v. State

Florida Court of Appeals, Fifth District

September 27, 2019

GEORGE NORWOOD, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Hernando County, Daniel B. Merritt, Jr., Judge.

          James S. Purdy, Public Defender, and Robert Jackson Pearce, III, Assistant Public Defender, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.

          EDWARDS, J.

         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.

         Appellant was contacted by a confidential informant ("C.I.") who arranged a rendezvous at a local convenience store where the C.I. would purchase liquid morphine from Appellant. As agreed, Appellant arrived alone in his maroon minivan, the C.I. walked over to him, and money was exchanged for drugs. Appellant remained in his vehicle while he conducted the sales transaction. Once the C.I. had the drugs in hand, Appellant drove his minivan out of the parking lot.

         Appellant does not attack his trafficking conviction, but seeks reversal of his conviction for the knowing possession of a conveyance intended to be used in trafficking a controlled substance. Appellant relies upon two cases from the Second District, each holding that to sustain a conviction under section 893.1351, there must be evidence of a nexus, beyond mere transportation, between the use of a vehicle and the sale, delivery, or trafficking of a controlled substance. Because Appellant did not make this argument below, he relies on the concept of fundamental error to excuse the lack of preservation and to obtain reversal.

         The first case that Appellant relies upon from the Second District is Delgado-George v. State, in which deputies stopped the defendant's car in the parking lot of a local bar and determined that he possessed seven individual sale-size baggies of marijuana. 125 So.3d 1031, 1032–33 (Fla. 2d DCA 2013). One deputy testified that the defendant told him that his original plan had been to sell the drugs inside that very bar that early morning, but the plan changed when the deputies stopped him in the bar's parking lot. Id. at 1033. Delgado-George denied making the statement and testified instead that his plan was to meet a friend in the wee hours of the morning to discuss buying a car. Id. The defendant said he had never sold marijuana from his car before and had no such intentions of doing so that morning. Id. The Second District reversed the conveyance conviction, finding that "there was nothing unique about this vehicle that would indicate its intended use was to traffic, sell, or manufacture controlled substances." Id. at 1034. The Second District declared the evidence proved only that the car was being used for transportation, and was too attenuated to prove that he intended to use his car for the sale. Id.

         Appellant also relies upon a more recent Second District case, Morris v. State, in which the defendant used his car to complete the pickup of a UPS package containing over 200 grams of cocaine, which was addressed and delivered to him at a bogus address. 264 So.3d 1036, 1037–38 (Fla. 2d DCA 2019). Citing to Delgado-George, the Second District concluded that because there was no evidence that the vehicle itself was a necessary component of trafficking, nor that there was anything special about the vehicle, the evidence was insufficient to sustain a conviction for possession of a vehicle intended to be used for trafficking. Id. at 1038. In essence, it found that the presence of cocaine in Morris's car was merely "happenstance, " which would not prove that Morris intended to use the vehicle for trafficking in controlled substances. Id.[1]

         Regardless of whether we agree with the Second District's conclusions in Delgado-George or Morris, those cases provide no support for Appellant, who transported the drugs in his van, actually sold the drugs while in his vehicle, and delivered the drugs from within his vehicle to the C.I.[2] This was no happenstance as Appellant intended to-and actually used-his minivan for the trafficking of the liquid morphine. We find that the evidence presented at trial was sufficient to sustain the conveyance conviction; thus, there was neither fundamental error nor any error at all in submitting the case to the jury, which in turn convicted Appellant. Accordingly, we affirm.

         AFFIRMED.

          WALLIS and ...


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