MONTREY MACK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed drug delivery and possession convictions because the State failed to introduce the cocaine into evidence at trial, despite the defendant's timely objection.
When a defendant is charged with possession or delivery of a controlled substance, that substance must be introduced into evidence if available, and failure to do so requires reversal if the defense objects.
[1] When a defendant is charged with possession or delivery of a controlled substance, the substance must be introduced into evidence if available, and failure to do so requi…
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Join FLexlaw to unlock all legal intelligence“when a defendant is charged with possession of a controlled substance that substance, if available, must be introduced into evidence”
G.E.G. v. State, 417 So. 2d 975, 977 (Fla.1982), establishing the foundational rule requiring introduction of contraband
Montrey Mack was charged with delivery of cocaine and possession of cocaine with intent to sell. The State never introduced the cocaine into evidence …
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NORTHCUTT, Judge.
Montrey Mack challenges his convictions for delivery of cocaine and possession of cocaine with intent to sell. We reverse his convictions because the State never introduced the cocaine into evidence at trial.
In G.E.G. v. State, 417 So. 2d 975, 977 (Fla.1982), our supreme court held that “when a defendant is charged with possession of a controlled substance that substance, if available, must be introduced into evidence....” The G.E.G. court also held that failure to introduce contraband was not fundamental error; the defense must object to the non-introduction. Mack did so here. His counsel moved for judgment of acquittal at the end of the State’s case. He told the court: “Specifically, the State has failed to introduce any evidence of cocaine ... they failed to introduce any evidence as to whether or not the cocaine was destroyed or any evidence at all concerning that cocaine.” See Trinidad v. State, 615 So. 2d 806 (Fla. 3d DCA 1993) (motion for judgment of acquittal arguing that State failed to prove defendant possessed marijuana sufficient objection to State’s non-introduction of physical evidence). After Mack’s counsel made this argument, the State offered no excuse or explanation why it had not introduced the cocaine. See G.E.G., 417 So. 2d at 977 n. 2. While G.E.G. involved a charge of possession of contraband, we see no reason that its holding would not apply equally to a charge of delivery of drugs. G.E.G. requires that we reverse Mack’s convictions.
Reversed and remanded with directions to discharge Montrey Mack.
ALTENBERND, A.C.J., and WHATLEY, J., concur.
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Citator
Cited By
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Marquel D. Williams v. State, 870 So. 2d 71 (Fla. 2d DCA 2003)…. 2d DCA 2003) (holding evidence insufficient where “defense counsel raised the nonintroduction of the cocaine, and neither the FDLE lab chemist nor the officer who discovered [*72] the cocaine testified that [it] was not available”); Mack v. State, 711 So. 2d 1154, 1154 (Fla. 2d DCA 1998) (“After [defense] counsel made this argument, the State offered no excuse or explanation why it had not introduced the cocaine.”). We accordingly reverse Williams’ convictions and remand with directions to discharge Willia…
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Ortiz v. State, 843 So. 2d 313 (Fla. 2d DCA 2003)…dge, Dissenting. I understand why the court feels compelled to reverse the conviction for possession of cocaine. This court extended the rule announced in G.E.G. to possession of [*315] cocaine in a case in which I participated. See Mack v. State, 711 So. 2d 1154 (Fla. 2d DCA 1998). Nevertheless, I dissent because I conclude that Mr. Ortiz did not adequately preserve this issue and that the evidence introduced by the State established a prima facie case of possession of cocaine. Mr. Ortiz was arrested for o…1 / 2
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D.R.S. v. State, 912 So. 2d 1280 (Fla. 2d DCA 2005)…reopen its case to offer the contraband as evidence.” 417 So. 2d at 978. This court has followed G.E.G. numerous times. See Ortiz v. State, 843 So. 2d 313, 314 (Fla. 2d DCA 2003); Williams v. State, 870 So. 2d 71 (Fla. 2d DCA 2003); Mack v. State, 711 So. 2d 1154 (Fla. 2d DCA 1998). But in the face of this longstanding case law, and D.R.S.’s argument, the State did not specifically ask to reopen its case in order to place the marijuana in evidence. We must reverse the court’s finding that D.R.S. was guilty o…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- G. E. G. v. State, 417 So. 2d 975 (Fla. 1982)
- Trinidad v. State, 615 So. 2d 806 (Fla. 3d DCA 1993)