DWIGHT MARRISETTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwight Marrisette was convicted of cocaine possession and drug paraphernalia possession. The appellate court reversed the cocaine possession conviction because the state failed to introduce the actual cocaine into evidence and failed to prove it was unavoidably destroyed, violating the 'best evidence' rule established in prior Florida case law.
The court reversed the cocaine possession conviction, holding that when a defendant is charged with possession of a controlled substance, that substance must be introduced into evidence if available, under 'best evidence' principles. The state failed to meet its burden of proving the cocaine was unavoidably destroyed during testing, and therefore the trial court should have granted the judgment of acquittal on the cocaine charge. The court affirmed the drug paraphernalia conviction but reversed and remanded to correct the judgment.
[1] A conviction for possession of a controlled substance requires the introduction of the substance into evidence, unless it was unavoidably destroyed during testing.
[2] The state bears the burden of proving that a controlled substance was unavoidably destroyed during testing when the substance itself is not introduced into evidence.
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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”
Establishes the foundational rule requiring introduction of controlled substances as evidence in possession cases
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Join FLexlaw to unlock all legal intelligencePolice officers observed Marrisette in an open field and saw him throw an object toward their vehicle. Officers recovered a glass pipe, which tested p…
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POLEN, J.
Dwight Marrisette timely appeals after a jury found him guilty as charged of possession of cocaine and possession with intent to use drug paraphernalia. He argues that because the state failed to introduce the cocaine into evidence, and also failed to show the cocaine was otherwise unavailable, the court should have granted him a judgment of acquittal on the cocaine possession charge. We agree and reverse this conviction.
On the date in question, officers in an unmarked car observed Marrisette in an open field waiving his hands toward the vehicle. When Marrisette realized they were police officers, he threw something toward the front of their vehicle. Deputy Rodriguez picked up the object and saw that it was a glass pipe. She performed a Valtox screen test on the pipe to determine the presence of cocaine. She did not testify as to what her screen test revealed. The deputy then sent the pipe to the state’s chemist, who later determined the pipe to contain cocaine residue. The state introduced the pipe into evidence, but not the cocaine.
After the state rested, Marrisette moved for a judgment of acquittal, arguing the state’s failure to introduce the actual cocaine into evidence was fatal. The state argued in response that there was no actual cocaine left because only residue was found on the pipe. Marrisette countered that there was no testimony as to what happened to the residue, only that there was less than one gram of cocaine found in the pipe. The court denied his motion, as well as his renewed motion at the close of the case. He was convicted as charged.
In Trinidad v. State, 615 So. 2d 806 (Fla. 3d DCA 1993), the court held that when a defendant is charged with possession of a controlled substance, that substance, if available, must be introduced into evidence. Id. at 807 (citing G.E.G. v. State, 417 So. 2d 975, 977 (Fla.1982)). The reason for this rule is embedded in “best evidence” principles. G.E.G., 417 So. 2d at 977. As an implicit exception to this rule, the state is excused from introducing the drugs into evidence if they were unavoidably destroyed during testing. Id. at 977 n. 2.
Because the state in the instant case failed to introduce the cocaine into evidence, under G.E.G. and Trinidad, it had the burden of proving that the substance was unavoidably destroyed during testing. It did not meet this burden. Without some testimony, as opposed to the unsworn argument of the prosecutor, as to why the cocaine was unavailable at trial, the court should have granted Marrisette a judgment of acquittal on the cocaine possession charge.
Marrisette also argues we should reverse his conviction for possessing drug paraphernalia. We affirm his conviction here, for there was testimony that the pipe seized was a crack cocaine pipe and, based on the chemist’s testimony, the jury could have inferred that Marrisette possessed it with the intent to use it. However, we reverse the court’s written judgment only insofar as it erroneously reflects Marri-sette pled to this charge rather than having been convicted of it following a trial.
AFFIRMED in part; REVERSED in part and REMANDED to vacate conviction and sentence for possession of cocaine, and to correct judgment with respect to conviction of drug paraphernalia in accordance with this opinion.
WARNER, C.J., and SHAHOOD, JJ., concur.
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Peterson v. State, 841 So. 2d 661 (Fla. 4th DCA 2003)…of a controlled substance, the state must introduce the substance into evidence unless excused by its destruction during testing. See G.E.G. v. State, 417 So. 2d 975, 977 n. 2 (Fla.1982). Appellant contends that our decision in Marrisette v. State, 780 So. 2d 1020 (Fla. 4th DCA 2001), requires reversal. We disagree. In Marrisette, also a cocaine pipe case, the state introduced the pipe into evidence, but not the cocaine. 780 So. 2d at 1021. We held that where the testimony failed to account for what happened…
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Ortiz v. State, 843 So. 2d 313 (Fla. 2d DCA 2003)…the technician to testify that the substance was cocaine, I believe that the defendant waived his option to demand that the substance be placed in evidence. See Houston-Hult v. State, 843 P. 2d 1262 (Alaska Ct.App.1992); but see Marrisette v. State, 780 So. 2d 1020 (Fla. 4th DCA 2001). Moreover, G.E.G., which attempted to create a “Solomonic” solution, requires that the defendant put the trial court on notice of this issue so that the State can reopen its case, if necessary, to introduce the drugs. G.E.G., 417…
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Fleming v. State, 82 So. 3d 967 (Fla. 4th DCA 2011)…[*971] On Motion FOR Rehearing En Banc POLEN, J. Having previously en banced this case, in order to recede from our prior opinion in Marrisette v. State, 780 So. 2d 1020 (Fla. 4th DCA 2001), we now consider en banc Fleming’s issue as to the application of Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (2011). Considering the matter en banc, we deny rehearing for the reasons set forth below. I…1 / 2
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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)