         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


JOHNNIE CLARENCE GEORGE,

             Appellant,

 v.                                                    Case No. 5D16-2190

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed January 27, 2017

Appeal from the Circuit Court
for Osceola County,
A. James Craner, Judge.

James S. Purdy, Public Defender, and
Edward J. Weiss, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

      Johnnie Clarence George (“Appellant”) appeals from his convictions for sale or

delivery of cocaine within 1000 feet of a park and conspiracy to sell or deliver cocaine

within 1000 feet of a park. We affirm the conviction for the sale or delivery of cocaine
without further discussion. However, we reverse the conspiracy conviction because there

is a complete failure of proof to establish the commission of this crime.

       Section 777.04(3), Florida Statutes (2015), provides, in pertinent part, that “[a]

person who agrees, conspires, combines, or confederates with another person or persons

to commit any offense commits the offense of criminal conspiracy.” In this case, the State

alleged that Appellant conspired with Shaun Graham (“Graham”) and “other persons

known or unknown” to commit the offense of sale or delivery of cocaine within 1000 feet

of a park. Viewing the sufficiency of the evidence presented at this brief trial in the light

most favorable to the State,1 a confidential informant (“CI”), acting on behalf of the St.

Cloud Police Department, drove her vehicle up to a driveway where Appellant and

Graham were standing. The CI first attempted to purchase crack cocaine from Graham,

but he did not have any. Appellant then walked up to the window of the CI’s vehicle and

began talking with the CI. Appellant directed the CI to pull her vehicle up to a different

location and indicated to her that he could provide her with cocaine from one of his

sources. Appellant then left on his bicycle, traveled to two separate houses, and came

back with crack cocaine, which he proceeded to sell to the CI for $40.

       Conspiracy is a separate and distinct crime from the offense which is the object of

the conspiracy. See Swindle v. State, 254 So. 2d 811, 812 n.2 (Fla. 2d DCA 1971) (citing

Brown v. State, 178 So. 153 (Fla. 1938)). As we explained in Green v. State, 999 So. 2d

1098 (Fla. 5th DCA 2009):



       1 The deferential standard of appellate review to claims of insufficiency of the
evidence asks whether there is competent substantial evidence to support the verdict and
judgment after all conflicts in the evidence and all reasonable inferences therefrom have
been resolved in favor of the verdict on appeal. F.B. v. State, 852 So. 2d 226, 230 (Fla.
2003) (citing Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981)).


                                             2
             The crime of conspiracy consists of an express or implied
             agreement between two or more persons to commit a criminal
             offense. Both an agreement and an intention to commit an
             offense are necessary elements of the crime. Young v. State,
             940 So. 2d 543, 544 (Fla. 5th DCA 2006). A conspiracy may
             be proven with circumstantial evidence and proof of the formal
             agreement is not necessary. However, evidence that a
             defendant was merely present at the scene of the crime, had
             knowledge of the crime, or even aided others in the
             commission of the crime is insufficient, by itself, to support a
             conspiracy conviction. Id. Rather, the State’s evidence must
             show that the defendant entered into an agreement with
             another to commit the crime and intended to commit the
             crime.

999 So. 2d at 1099.

      The State first argues that Appellant did not preserve for appellate review his claim

that the evidence was insufficient to establish the commission of a conspiracy because

Appellant failed to challenge the sufficiency of the evidence below.             Appellant

acknowledges that he did not move for a judgment of acquittal on this count at trial, but

argues that where the evidence is insufficient to establish that a crime was committed at

all, this constitutes fundamental error and need not be preserved for appellate review.

See F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003) (stating that “argument that the

evidence is totally insufficient as a matter of law to establish the commission of a crime

need not be preserved” for appellate review because “[s]uch complete failure of the

evidence meets the requirements of fundamental error”); O’Connor v. State, 590 So. 2d

1018, 1019 (Fla. 5th DCA 1991) (reversing conviction for conspiracy to traffic in cocaine

because, although not argued to the trial court, the complete failure of proof to support

the conspiracy charge constitutes fundamental error (citations omitted)).

      Appellant’s alleged co-conspirators were Shaun Graham and other “known or

unknown” persons.      “[A] defendant charged with conspiracy may be convicted of



                                            3
conspiring with persons whose names are unknown; however, the evidence must show

that an unnamed coconspirator did exist and that the defendant conspired with him.”

O’Connor, 590 So. 2d at 1020 (citing State v. Rodriguez-Jimenez, 439 So. 2d 919 (Fla.

3d DCA 1983) (additional citations omitted)). Here, other than the fact that Appellant went

to two houses and returned with the crack cocaine used to consummate the transaction

with the CI, there was no evidence of any meetings, conversations, or pre-arrangements

from which the jury could infer the existence of an agreement between Appellant and

unnamed or unknown persons to commit a criminal offense.               As we observed in

O’Connor, where there was a similar lack of evidence of any agreement to conspire, if the

analysis as to whether a conspiracy to traffic in cocaine existed only required the seller to

have obtained the drugs from another, then “every person who sold drugs would also be

guilty of conspiracy on the rationale that he must have gotten it from someone else.” Id.

       As to Appellant conspiring with Graham, our opinion in Gray v. State, 526 So. 2d

1020 (Fla. 5th DCA 1988), is instructive. In Gray, the State proved at trial that an

informant walked up to an individual named Burley and asked him if he was selling

cocaine. 526 So. 2d at 1021. Burley said no and took the informant to Gray. Id. The

informant handed money to Burley, who handed it to Gray, who handed cocaine to Burley,

who handed it to the informant. Id. In reversing Gray’s conviction for conspiracy to deliver

cocaine, we concluded that because there was no proof of any pre-arrangement, any

prior discussions or plans, or anything else done in preparation for the above-described

events, there was an absence of proof that Burley and Gray conspired together to commit

the crime or did anything other than engage in the one transaction. Id. In the present




                                             4
case, the quantum of evidence of a conspiracy between Appellant and Graham to sell or

deliver cocaine is less than that in Gray.

       Accordingly, we reverse Appellant’s conviction and sentence for conspiracy to sell

or deliver cocaine within 1000 feet of a park. Further, because Appellant’s total sentence

points on his Criminal Punishment Code scoresheet will now be reduced, and it is not

clear in our record whether the trial court would have imposed the same sentence upon

Appellant if he had only been convicted of sale or delivery of cocaine within 1000 feet of

a park, we remand for resentencing on this conviction with a corrected scoresheet.2 See

Fernandez v. State, 199 So. 3d 500, 502 (Fla. 2d DCA 2016) (“In general, when the

vacation of a conviction would result in changes to the defendant’s scoresheet, the

defendant is entitled to be resentenced using a corrected scoresheet” that utilizes only

his actual convictions. (citations omitted)).

       AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and EVANDER, JJ., concur.




       2  Based upon Appellant’s extensive criminal record, the trial court sentenced him
to serve fifteen years in prison, designating Appellant as a habitual felony offender. While
the trial court has the discretion to do so, we take no position regarding whether or not
the court should impose the same sentence upon Appellant.

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