Campbell v. State

935 So. 2d 614, 2006 WL 2270351
District Court of Appeal of Florida·Decided August 9, 2006·No. 3D04-1994·Published·Cited by 9 cases

Opinion

935 So.2d 614 (2006)

Keith George CAMPBELL, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D04-1994.

District Court of Appeal of Florida, Third District.

August 9, 2006.

*615 Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.

Before, COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.

WELLS, J.

Keith George Campbell appeals his convictions and sentences for conspiracy to traffic in cocaine with a firearm, attempted trafficking in cocaine with a firearm, and conspiracy to commit robbery with a firearm. On appeal, Campbell raises five issues claiming (1) that he could not be convicted for two conspiracies where only one conspiracy existed; (2) he could not be convicted of attempted trafficking in cocaine where no cocaine existed; (3) that his offenses could not be reclassified for possession of a firearm where he never actually possessed a weapon; (4) that he could not be sentenced as a violent career criminal where the crimes for which he was being sentenced are not forcible felonies; and (5) that the trial court erred in failing to give an objective entrapment jury instruction. We agree that some of these claims have merit and address each of them below.

Campbell's convictions stem from a sting operation conducted by the Miami-Dade *616 Police Department as part of S.T.O.P.—a multi-law enforcement task force designed, through the use of confidential informants, to proactively target individuals engaged in drug related "rip-offs." In October 2000, a task force member was advised by a confidential informant[1] that Campbell wanted to make some money and was interested in participating in a crime.[2] Upon hearing this, the task force crafted a plan where a task force officer would pose as a disgruntled drug courier who needed help in ripping-off his employer's cocaine.

Campbell thereafter participated in two meetings with task force members regarding this plan. The confidential informant brought Campbell to the first meeting in a parking lot where a task force officer posing as a drug courier told Campbell that he wanted to steal his employer's cocaine but could not do it himself because other drug dealers would kill him. The officer stated that he "wanted to see if anybody would help him or not." The second meeting took place at a fast food restaurant between the informant, Campbell, Campbell's friends, and the task force officer, during which the plan to rip-off the "employer's" cocaine was rehashed. Both of these meetings were videotaped.

Task force members thereafter contacted Campbell two additional times by telephone, each time providing Campbell with the opportunity to back out of the plan. Campbell wanted to proceed with the plan.[3]

Thereafter, acting on the rip-off plan, the informant picked up Campbell and three of his friends, and the "tools" needed for the rip-off and brought them to a warehouse where the four (one of whom was carrying a blue bag) got into an SUV to be used in the rip-off. At that point, the police announced an arrest. Campbell's friends fled; Campbell remained with the SUV. All were arrested.

The blue bag that was carried into the SUV by one of the men was recovered from behind the driver's seat, the seat occupied by Campbell. It contained a 12-gauge shotgun. A .38 caliber gun was found close to where Campbell's two friends were apprehended and a .25 caliber semiautomatic was found in one of the men's pocket. An additional weapon, a.380 caliber semiautomatic, also was recovered from where one on Campbell's friends had thrown it.

Campbell was charged with armed conspiracy to commit trafficking in cocaine, attempted armed conspiracy to traffic in cocaine, use or display of a firearm while committing a felony, armed conspiracy to commit robbery, and possession of a firearm or weapon by a convicted felon. Campbell testified at trial admitting that he committed the charged offenses and that he had a substantial criminal record. He claimed, however, that he acted under the influence of the confidential informant.

Campbell was found guilty of conspiracy to traffic in cocaine with a firearm, attempted trafficking in cocaine with a firearm, and conspiracy to commit robbery with a firearm. He was sentenced to life imprisonment for conspiracy to traffic in cocaine with a firearm and attempted trafficking in cocaine with a firearm and to 40 *617 years imprisonment for conspiracy to commit robbery with a firearm. He was adjudicated a violent career criminal and received a 15 year minimum mandatory sentence on the conspiracy to traffic in cocaine with a firearm count, a life minimum mandatory sentence on the attempted trafficking in cocaine with a firearm count, and a 30 year minimum mandatory sentence on the conspiracy to commit robbery with a firearm count, all to run concurrently. He raises five challenges to these convictions and sentences.

First, Campbell argues, and the State agrees, that the trial court erred in convicting him of both conspiracy to traffic in cocaine with a firearm and conspiracy to commit robbery with a firearm, where only one conspiracy existed. "A criminal conspiracy is the agreement to commit a criminal act or acts, and if a single agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses. The conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act." Durden v. State, 901 So.2d 967, 968 (Fla. 2d DCA 2005) (citing Doolin v. State, 650 So.2d 44, 44-45 (Fla. 1st DCA 1995)); see Epps v. State, 354 So.2d 441, 442 (Fla. 1st DCA 1978) ("[a] single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is still one offense, no matter how many repeated violations of the law may have been the object of the conspiracy"). Since only a single conspiracy with the dual goals of committing armed trafficking and armed robbery was proved to exist, one of the conspiracy convictions, and its accompanying sentence, must be vacated.

Second, Campbell argues that he cannot be convicted for attempted trafficking in cocaine where no cocaine existed. We disagree. While trafficking requires the existence of cocaine, attempted trafficking in cocaine does not. § 777.04(1), Fla. Stat. (2005) ("[a] person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but . . . [is] prevented in the execution thereof, commits the offense of criminal attempt"); Brooks v. State, 762 So.2d 879, 897 (Fla. 2000) (confirming that to establish attempted trafficking in cocaine no actual cocaine must be proved to exist); State v. Cohen, 409 So.2d 64, 64-65 (Fla. 1st DCA 1982) (confirming that no cocaine need exist to support a conviction for attempted sale of cocaine because "[c]riminal attempt occurs when (1) there is intent to commit a crime, and (2) there is an overt act which (3) falls short of the ultimate design due to circumstances independent of the will of the attemptor"). Campbell admitted that he intended to and acted to traffic in cocaine. He cannot, therefore, avoid conviction for attempting to do so because the lack of cocaine thwarted his objective. See Cohen, 409 So.2d at 65 (holding that "the defendants should not be allowed to escape prosecut

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Campbell v. State, 935 So. 2d 614, 2006 WL 2270351 (Fla. Ct. App. 2006).

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