ROUNSLEY v. STATE, 520 So.2d 333 (Fla.App. 4 Dist. 1988)

MICHAEL ROUNSLEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 87-0367.District Court of Appeal of Florida, Fourth District.
March 2, 1988.

Appeal from the Circuit Court, Broward County, Lawrence L. Korda, J.

Robert L. Bogen of Braverman Bogen, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We agree with the defendant’s contention that he was entrapped into trafficking in cocaine. Accordingly, we reverse the

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denial of his motion to dismiss as well as the judgment and sentence of guilty for trafficking in cocaine (Count I). Upon remand, the trial court is directed to discharge the defendant as to Count I.

The facts of this case are not in dispute. The defendant was a loan shark and had lent money to Peter Spitz (Spitz). Rather than repay the monies, Spitz contacted law enforcement and they initiated an investigation of defendant for “loansharking.” Spitz became an undercover agent in the investigation and law enforcement persuaded Spitz to offer the defendant cocaine in place of the cash Spitz owed him. The defendant, who was not even under articulable suspicion for any narcotics violations, refused on two separate occasions to accept the cocaine in lieu of cash. Contacted a third time, the defendant reluctantly agreed to accept the cocaine as payment.

The Supreme Court has made it abundantly clear that entrapment has not occurred as a matter of law where the police action interrupts a specific ongoing criminal activity. Cruz v. State, 465 So.2d 516, 522 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). Criminal activity in the form of loansharking was involved here, but no activity whatever was ongoing as to the specific crime of trafficking in cocaine. Since law enforcement did not interrupt a specific ongoing narcotics offense, the defendant was entrapped and his motion to dismiss should have been granted.

REVERSED AND REMANDED.

GUNTHER, J., and OWEN, WILLIAM C., JR., (Retired), Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, concurring specially.

I agree that the appellant is entitled to be discharged under the holding of Cruz v. State, 465 So.2d 516, 522 (Fla. 1985):

Entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity.

As to the first prong, the court condemned “police activity seeking to prosecute crime where no such crime exists but for police activity engendering the crime.” Id. at 522. As to the second prong, the court stated that one impermissible means of entrapment was by “employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.” Id. at 522.

Incredibly, in the trial court, the police officials involved testified that cocaine was used instead of the $15,000.00 owed by Spitz only because “cocaine could be controlled easier than cash.” I agree that this is the kind of situation the Florida Supreme Court had in mind in Cruz in condemning police conduct which creates crime “where no such crime exists but for police activity engendering the crime.” Id. at 522.