JACK STANLEY MARINOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The jury instruction regarding unexplained possession of recently stolen property is not prejudicial error when considered in light of controlling precedent.
The defendant was convicted of grand larceny after a jury instruction was given over objection concerning the inference of guilt from unexplained poss…
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BERANEK, Judge.
This case presents the question of whether the following jury instruction constitutes prejudicial error:
Proof of unexplained possession by the defendant of property recently stolen may justify a conviction of larceny of that property if the evidence of the taking and the circumstances of the possession, when considered in the light of all of the evidence in the case convince you beyond a reasonable doubt that the defendant committed the crime.
The above charge was given over objection in defendant’s trial and conviction of grand larceny. Defendant elected not to take the stand and now asserts this charge to be error. In view of State v. Young, 217 So. 2d 567 (Fla.1968), we have no alternative and hold the instruction to be free from error. This Court has previously followed the Young decision in Dixon v. State, 227 So. 2d 740 (Fla. 4th DCA 1969).
Were we not bound by the aforementioned Supreme Court decision, we might well reconsider this entire question. The dissent in Young, written by Justice Thor-nal and concurred in by two others express es a contrary view. This dissent holds that “any possession” rather than “unexplained possession” will support the inference of guilt. This view was based on the “newly recognized constitutional protections,” stated in Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We now have over a dozen years’ experience with these newly recognized principles and would urge reconsideration by modification of the instruction as suggested in the dissent.
The judgment below is affirmed on authority of State v. Young, 217 So. 2d 567 (Fla.1968).
AFFIRMED.
DAUKSCH and LETTS, JJ., concur.
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Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980)…d; therefore, the instruction was improper. That distinguishes Griffin from the instant case. The Fourth District Court of Appeal recently has recognized the binding precedent set by Young in the factual setting herein considered. Marinos v. State, 371 So. 2d 675 (Fla. 4th DCA 1979). The defendant’s last point on appeal is that his sentence for conviction of a second degree felony was enhanced by the trial court to a term of twenty years in contravention of the provisions of Section 775.084, Florida Statute…
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Lynn v. State, 395 So. 2d 621 (Fla. 1st DCA 1981)…ain .... It is the fact of possession that provides the basis for the inference of guilt.” Young v. State, 217 So. 2d 567, at 570 (Fla.1968). Whether or not the word “unexplained” might properly be omitted from the instruction (cf. Marinos v. State, 371 So. 2d 675 (Fla. 4th DCA 1979)), the language of the instruction, supra, has been approved by the Court and may arguably refer to any possession (of property recently stolen) which the jury finds to be unexplained by the evidence. We note also that the decisio…
Authorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- State v. Young, 217 So. 2d 567 (Fla. 1968)
- Dixon v. State, 227 So. 2d 740 (Fla. 4th DCA 1969)