McDade v. State

District Court of Appeal of Florida

McDade v. State

211 So. 2d 242, 1968 Fla. App. LEXIS 5454

CourtDistrict Court of Appeal of Florida

DecidedJune 11, 1968

DocketNo. 1519

StatusPublished

Cited by2 cases

This text of 211 So. 2d 242 (McDade v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDade v. State, 211 So. 2d 242, 1968 Fla. App. LEXIS 5454 (Fla. Ct. App. 1968).

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Opinion

OWEN, Judge.

This is an appeal by the defendant, Roy Thomas McDade, from a judgment and sentence following a jury trial and conviction on a charge of unlawfully selling a quantity of a narcotic drug, to-wit: cannabis, also known as marijuana.

The sole point raised on appeal is whether the trial court committed error in denying appellant’s request for a jury instruction on the defense of entrapment.

The trial court, holding that the evidence was insufficient to raise the issue of entrapment, denied the instruction on the authority of Koptyra v. State, Fla.App.1965, 172 So.2d 628. Our review of the record leads us to the conclusion that it was error for the trial court to deny defendant’s request for instruction on this defense. While the evidence is conflicting, there is sufficient competent evidence which if believed by the jury, would sustain defendant’s theory of the defense of entrapment. This being so, defendant is entitled to have the jury instructed upon his theory of the case. Holley v. Kelley, Fla.1957, 91 So.2d 862.

The judgment and sentence are severally vacated and the cause remanded for a new trial.

WALDEN, C. J., and REED, J., concur.

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OWEN, Judge.

This is an appeal by the defendant, Roy Thomas McDade, from a judgment and sentence following a jury trial and conviction on a charge of unlawfully selling a quantity of a narcotic drug, to-wit: cannabis, also known as marijuana.

The sole point raised on appeal is whether the trial court committed error in denying appellant’s request for a jury instruction on the defense of entrapment.

The trial court, holding that the evidence was insufficient to raise the issue of entrapment, denied the instruction on the authority of Koptyra v. State, Fla.App.1965, 172 So.2d 628. Our review of the record leads us to the conclusion that it was error for the trial court to deny defendant’s request for instruction on this defense. While the evidence is conflicting, there is sufficient competent evidence which if believed by the jury, would sustain defendant’s theory of the defense of entrapment. This being so, defendant is entitled to have the jury instructed upon his theory of the case. Holley v. Kelley, Fla.1957, 91 So.2d 862.

The judgment and sentence are severally vacated and the cause remanded for a new trial.

WALDEN, C. J., and REED, J., concur.

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211 So. 2d 242, 1968 Fla. App. LEXIS 5454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdade-v-state-fladistctapp-1968.

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