NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DEWARDERICK MORRIS, )
a/k/a DEWARDERICK MIKKEL )
MORRIS, )
)
Appellant, )
)
v. ) Case No. 2D16-4084
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed January 16, 2019.
Appeal from the Circuit Court for Polk
County; John K. Stargel, Judge.
Marie-Louise Samuels Parmer of The
Samuels Parmer Law Firm, P.A., Tampa,
for Appellant.
Ashley Brooke Moody, Attorney General,
Tallahassee, and Elba Caridad Martin,
Assistant Attorney General, Tampa, for
Appellee.
VILLANTI, Judge.
Dewarderick Mikkel Morris seeks review, on multiple grounds, of his
convictions and sentences for trafficking in 200 grams or more of cocaine, possession
of a conveyance to be used for trafficking, and possession of drug paraphernalia. The
jury returned guilty verdicts as to all charges. However, we reverse solely the conviction
for possession of a conveyance for trafficking based on fundamental error. We affirm
the other convictions and sentences without comment.
A detective and his K-9 dog were on duty at a UPS distribution center
when the detective was alerted to a package. The package was addressed to "Michael
Morris," who did not live at the residential address. The package was thereafter
delivered to the location during a controlled delivery. Fifteen minutes later, Mr. Morris
pulled up to the residence and went inside while his wife waited in the vehicle. A few
minutes later, he came out with the package, put it in the back seat of the vehicle, and
left. The police arrested Mr. Morris shortly thereafter.
Section 893.1351(2), Florida Statutes (2016), prohibits knowingly
possessing a "conveyance with the knowledge that the . . . conveyance will be used for
the purpose of trafficking in a controlled substance." To sustain a conviction for this
offense, this court has held that the State must present sufficient evidence of a nexus
between the use of the vehicle and the crime. See Hunt v. State, 43 Fla. L. Weekly
D2271 (Fla. 2d DCA Oct. 5, 2018) (citing Delgado-George v. State,
125 So. 3d 1031,
1033 (Fla. 2d DCA 2013)). Thus, "the focus should be on the use of the vehicle in the
sale." Hunt, 43 Fla. L. Weekly at D2271 (citing
Delgado-George, 125 So. 3d at 1033).
In other words, the presence of a controlled substance in a conveyance must be shown
to be more than happenstance before the conveyance can be considered being used
for trafficking in the controlled substance.
In Delgado-George, the defendant was pulled over during a traffic stop
and admitted to the officer that he was on his way to a local bar to sell marijuana. 125
-2-
So. 3d at 1033. This court held that a judgment of acquittal should have been granted
because there was no evidence that the vehicle was a necessary component of the
intended drug sale or that there was anything "unique about th[e] vehicle that would
indicate its intended use was to traffic, sell, or manufacture controlled substances."
Id.
at 1034. This court concluded that the State failed to show that a crime was committed
under section 893.1351(2) because the evidence was insufficient to prove a nexus
between the defendant's intent to sell and the use of the vehicle.
Id.
Here, the only evidence about the vehicle was that Mr. Morris drove the
vehicle to a house. His wife waited in the vehicle while he went inside. A few minutes
later, Mr. Morris placed the package in the vehicle and left. There was no evidence that
the vehicle itself was a necessary component of trafficking in a controlled substance.
Nor was there anything about the vehicle, or his wife's presence in it, that indicated it
was intended for such use. Hence, the evidence was insufficient to prove the offense of
possession of a conveyance to be used for trafficking.
Even though the issue was unpreserved, we conclude that the error was
fundamental. The Florida Supreme Court has held fundamental error is such that
"reach[es] down into the validity of the trial itself to the extent that a verdict of guilty
could not have been obtained without the assistance of the alleged error." F.B. v. State,
852 So. 2d 226, 229 (Fla. 2003) (quoting Brown v. State,
124 So. 2d 481, 484 (Fla.
1960)).
Generally, a defendant must preserve a claim of insufficiency of the
evidence in the trial court.
F.B., 852 So. 2d at 229. However, an exception to this rule
occurs "when there is insufficient evidence that a defendant committed any crime."
-3-
Monroe v. State,
191 So. 3d 395, 401 (Fla. 2016); see also
F.B., 852 So. 2d at 230
("The . . . exception to the requirement that claims of insufficiency of the evidence must
be preserved occurs when the evidence is insufficient to show that a crime was
committed at all."); Andre v. State, 13 So. 3d 103, 105 (Fla. 4th DCA 2009) (holding that
it was fundamental error to convict the defendant where "the State failed to prove an
essential element of the crime"). Under the facts of this case, had this argument been
raised below, the trial court would have been compelled to grant it.
Consistent with F.B., this court has held that "a conviction is fundamentally
erroneous when the facts affirmatively proven by the State simply do not constitute the
charged offense as a matter of law." Cox v. State,
1 So. 3d 1220, 1222 (Fla. 2d DCA
2009) (quoting Griffin v. State,
705 So. 2d 572, 574 (Fla. 4th DCA 1998)) (holding that
the charged offense of aggravated child abuse could not be sustained where there was
no evidence of any physical or mental injury resulting from a father's verbal tirade);
accord Rodriguez v. State,
964 So. 2d 833, 836 n.1 (Fla. 2d DCA 2007) ("It is . . .
fundamental error to convict a defendant when the State has failed to prove an element
that is essential to the commission of the crime."). Additionally, there is no lesser
included charge to the conveyance offense, which further supports the conclusion that
evidence was "insufficient to show that a crime was committed at all." Kirkland v. State,
225 So. 3d 920, 922 (Fla. 1st DCA 2017) (quoting
F.B., 852 So. 2d at 230)). Simply
put, the evidence was insufficient to prove that Mr. Morris's vehicle was a necessary use
component of trafficking in a controlled substance or that it was intended for such use.
Because this conviction resulted in fundamental error, we must reverse and vacate only
the conviction for possession of a conveyance used for the trafficking of controlled
-4-
substances. We affirm Mr. Morris's remaining convictions. On remand, he must be
resentenced on those convictions.
Affirmed in part, reversed in part, and remanded with instructions.
NORTHCUTT and ATKINSON, JJ., Concur.
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