A 15 year sentence for trafficking in cocaine reversed, failure of State to prove necessary weight.
In the case of Jackson v. State, 76 So. 3d 1130 (Fla. 4th DCA 2012), the defendant was convicted of trafficking in cocaine in an amount of 200 grams or more, but less than 400 grams. He was sentenced to 15 years in prison with a 7 year mandatory minimum.
A search of the defendant’s residence resulted in 8 bags containing a powdery substance and 8 bags containing cocaine rocks.
At trial, the police officer testified that the defendant purchases a quarter kilogram of cocaine every two weeks and cooks about half of it into crack cocaine.
The state chemist who conducted the testing of the substance testified that each of the bags were packaged the same way and with the same type of material inside.
The chemist also testified that the 8 bags of powder weighed a total of 182.7 grams and that the 2 bags that contained cocaine rocks weighed 22.9 grams and 6.6 grams.
The chemist testified that only one of the bags of powder was examined for cocaine. The sentence was reversed because the state did not prove that the weight was greater than 200 grams.
In this regard, the court noted that each of the bags had to be tested rather than simply assuming that because they were similar in appearance and contained a white substance, that the other 7 bags containing a white substance were in fact, cocaine.
The court cited to Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1998), the defendant’s conviction for trafficking in cocaine was reversed because the state failed to prove that the weight of the cocaine was in excess of 28 grams. In that case only 2 of the 92 separate packages were tested. The 2 packages that were tested weighed less than 28 grams. The court also cited to similar results in the case of Safford v. State, 708 So. 2d 676, 677 (Fla. 2d DCA 1998).
Likewise, the case of Pama v. State, 552 So. 2d 309 (Fla. 2d DCA 1989) was cited for the proposition that proof of a controlled substance by circumstantial evidence including such things as appearance, packaging, odor, circumstances of seizure, the manner in which the substance was being transported, as well as comments as to the identity of the substance by a person at the scene. While admittedly circumstantial evidence concerning the sale, such evidence is not sufficient to prove weight. What is necessary for the state to prove is that the substance in each bag test positive for cocaine.