Ruffner v. State

District Court of Appeal of Florida

Ruffner v. State

590 So. 2d 1054, 1991 Fla. App. LEXIS 12381, 1991 WL 267965

CourtDistrict Court of Appeal of Florida

DecidedDecember 17, 1991

DocketNo. 91-690

StatusPublished

This text of 590 So. 2d 1054 (Ruffner 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

Ruffner v. State, 590 So. 2d 1054, 1991 Fla. App. LEXIS 12381, 1991 WL 267965 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

Randy Ruffner appeals from a judgment of conviction for sale of a substance in lieu of a controlled substance. For the following reason, we reverse and remand for a new trial.

Ruffner and a codefendant arranged to sell $500 worth of LSD to a police informant. However, the substance sold tested negative for LSD in both field and laboratory tests. Ruffner was charged with violating section 817.563, Florida Statutes (1989), which provides that “[i]t is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance.” However, the jury was instructed on the meaning of “imitation controlled substance,” which is defined in section 817.564, Florida Statutes, in part, as a substance “which is not a controlled substance enumerated in chapter 893....” Section 817.564 prohibits the possession and distribution of imitation controlled substances. The jury was thus instructed on a crime with which the defendant was not charged. Moreover, the charge that was given omitted the element required by the crime charged in the information that the defendant must have agreed, consented, or offered to sell a substance that he knew was a controlled substance.

Accordingly, we reverse. The trial court failed to “correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” Gerds v. State, 64 So.2d 915, 916 (Fla.1953). We deem the error fundamental because the omission was “pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983).¹

Reversed and remanded.

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PER CURIAM.

Randy Ruffner appeals from a judgment of conviction for sale of a substance in lieu of a controlled substance. For the following reason, we reverse and remand for a new trial.

Ruffner and a codefendant arranged to sell $500 worth of LSD to a police informant. However, the substance sold tested negative for LSD in both field and laboratory tests. Ruffner was charged with violating section 817.563, Florida Statutes (1989), which provides that “[i]t is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance.” However, the jury was instructed on the meaning of “imitation controlled substance,” which is defined in section 817.564, Florida Statutes, in part, as a substance “which is not a controlled substance enumerated in chapter 893....” Section 817.564 prohibits the possession and distribution of imitation controlled substances. The jury was thus instructed on a crime with which the defendant was not charged. Moreover, the charge that was given omitted the element required by the crime charged in the information that the defendant must have agreed, consented, or offered to sell a substance that he knew was a controlled substance.

Accordingly, we reverse. The trial court failed to “correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” Gerds v. State, 64 So.2d 915, 916 (Fla.1953). We deem the error fundamental because the omission was “pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983).¹

Reversed and remanded.

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590 So. 2d 1054, 1991 Fla. App. LEXIS 12381, 1991 WL 267965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruffner-v-state-fladistctapp-1991.

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