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455 So. 2d 633

Docket No. 83-1005.

Wiesenberg v. State

David Shane WIESENBERG, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided September 13, 1984.

District Court of Appeal of Florida · decided 1984-09-13

Cited by 5 later decisions — most recently September 2003

5 state decisions

Key passage — most relied on by later courts

“Before you can find the Defendant guilty of trafficking in cocaine, the State must prove the following three elements beyond a reasonable doubt: Element number one, the Defendant knowingly sold, delivered or possessed a certain substance. Element number two, the Defendant knew the substance was cocaine or a mixture containing cocaine. And element number three, the quantity of the cocaine involved was twenty-eight grams or more. (emphasis added)”

quoted by 2 later decisions, including 509 So. 2d 917 - State v. Dominguez, 492 So. 2d 1187 - Dominguez v. State

Relies on State v. Ryan

Good law ✅— No negative treatment on recordhow we know

Decided 1984-09-13

View the full empirical analysis of this case →

¶1Sara R. MacKenzie of Michael Sigman, P.A., Orlando, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3FRANK D. UPCHURCH, Jr., Judge.

¶4David Wiesenberg appeals from his conviction for trafficking in cocaine in violation of section 893.135(1)(b), Florida Statutes (Supp. 1982). The statute, in pertinent part, provides:

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine ... is guilty of ... trafficking in cocaine.

¶5§ 893.135(1)(b)1, Fla. Stat.

¶6The trial judge instructed the jury that under the statute, the state must prove:

(1) The defendant knowingly sold, delivered or possessed a certain substance.
(2) The substance was cocaine or a mixture containing cocaine.
(3) The quantity of the cocaine involved was 28 grams or more.

¶7See Florida Standard Jury Instructions in Criminal Cases.

¶8Wiesenberg argues on appeal that the state was obligated to prove that he had specific knowledge that he was selling an amount which would satisfy the trafficking statute. Wiesenberg relies on State v. Ryan,413 So.2d 411 (Fla. 4th DCA 1982) in support of his contention that he must have known he was trafficking in cocaine in an amount exceeding twenty-eight grams before he could be convicted. Ryan, however, only stands for the proposition that before a defendant can be convicted pursuant to the trafficking statute, he must be cognizant of the fact he is selling a particular substance. In Ryan, the defendant thought she was trafficking in marijuana, not in cocaine as she was later convicted of.

¶9We do not find any substance to Wiesenberg's position. It is sufficient if Wiesenberg knew he was selling cocaine. If it exceeded twenty-eight grams, he may be convicted of trafficking even if the state does not prove he knew the quantity exceeded twenty-eight grams. In this regard, we analogize the situation to that involving grand theft wherein the state need only show that the defendant had the requisite intent to obtain the property, not that he knew it was valued at $100 or more.

¶10AFFIRMED.

¶11SHARP and COWART, JJ., concur.

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