Allen v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHARLES MICHAEL ALLEN, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Case No. 2D08-4980 Opinion filed October 16, 2009. Appeal from the Circuit Court for Hillsborough County; Barbara Fleischer, Judge. Peter A. Sartes of Law Offices of Tragos & Sartes, Clearwater, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee. KHOUZAM, Judge. Charles Michael Allen appeals the judgment entered following a juryʹs verdict of guilt for trafficking in cocaine in the amount of 400 grams or more but less than 150 kilograms. Because Allen never exercised even temporary dominion and control over the cocaine, the State's case rested exclusively on the theory that Allen purchased the cocaine. The evidence was sufficient to establish that Allen attempted to purchase cocaine. However, the evidence was not sufficient to establish that a purchase took place. Accordingly, we reverse and remand for entry of a judgment for the lesser-included offense of attempted trafficking in the amount of 400 grams or more but less than 150 kilograms and for resentencing in conformity therewith. See § 924.34, Fla. Stat. (2007); see also State v. Sigler, 967 So. 2d 835, 844 (Fla. 2007) (opining that when all of the elements of a lesser-included offense have been determined by the jury, statutory provision that allows an appellate court to reverse a judgment and direct the trial court to enter a judgment for a lesser-included offense ʺis a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offenseʺ). Reversed and remanded. FULMER and WALLACE, JJ., Concur. -2-