Cutrell v. State

COWART, Judge. The defendant was convicted of a charge of conspiracy to traffic in cocaine allegedly occurring between May 1 and May 30, 1985 and involving an airplane flight from Colombia on May 24, 1985. The defendant was also convicted of a charge of conspiracy to traffic in cocaine allegedly occurring between June 1 and June 25, 1985, and involving an attempted airplane flight to Colombia on June 26, 27 or 28, 1985. The evidence shows that one overall conspiracy to traffic in cocaine by a series of airplane trips to and from Colombia commenced in February, 1985 and continued until late June, 1985 and that the defendant joined and became a member of that conspiracy in May, 1985. The evidence establishes that in this case there was one overall conspiracy conspiring to traffic in cocaine by making a series of airplane trips to and from Colombia as distinguished from, and opposed to, a series of separate and distinct conspiracies each relating to one airplane trip. The defendant participated in one conspiracy to commit two crimes and should have been convicted of but one conspiracy charge. See Cummings v. State, 514 So.2d 406 (Fla. 4th DCA 1987); Cam v. State, 433 So.2d 38, 39 (Fla. 1st DCA 1983); Epps v. State, 354 So.2d 441 (Fla. 1st DCA 1978), cert. denied, 360 So.2d 1250 (1978). The defendant’s conviction and sentence for conspiracy under Count IV of case number 88-4593-ES is reversed. The defendant’s conviction and the imposition of the fifteen year minimum mandatory sentence 1 under Count III of case number 88-4593-ES is affirmed. AFFIRMED in part; REVERSED in part. W. SHARP and GOSHORN, JJ., concur. Footnotes [1] § 893.135(l)(b)3, Fla.Stat.