BONNIE DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Possession of cocaine residue on an object with a common legitimate use, without more, is insufficient to sustain a conviction for knowing possession of cocaine.
[1] Possession of an object with a common legitimate use containing a trace amount of cocaine, without more, is insufficient to sustain a conviction for knowing possession of…
[2] A conviction for possession of an illegal substance requires conscious and substantial possession by the accused, not merely involuntary or superficial possession.
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Join FLexlaw to unlock all legal intelligenceDavis was arrested for another offense and cocaine residue was found on a box cutter seized from her. She was charged with possession of cocaine based…
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FULMER, Acting Chief Judge.
Bonnie Davis appeals the denial of her motion to dismiss the charge of possession of cocaine filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). Davis asserts that the evidence was insufficient to establish a prima facie case where the charge was based on her possession of cocaine residue found on a box cutter that was seized from her at the time she was arrested for another offense. We agree that the evidence was insufficient and, therefore, we reverse.
In Lord v. State, 616 So. 2d 1065, 1067 (Fla. 3d DCA 1993), the defendant had discarded a crumpled dollar bill as the police approached. White dust on the currency proved to be a trace amount of cocaine. The Third District held that possession of an object that has a common legitimate use and that contains a trace amount of cocaine, without more, is insufficient to sustain a felony conviction for knowing possession of cocaine. This holding was based upon application of the settled principle that “in order to convict for possession of an illegal substance there must be ‘a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.’ ” Id. at 1066-67 (quoting State v. Eckroth, 238 So. 2d 75, 76 (1970), and Reynolds v. State, 92 Fla. 1038, 1041, 111 So. 285, 286 (1926)). The court in Lord distinguished Jones v. State, 589 So. 2d 1001 (Fla. 3d DCA 1991), where knowledge was presumed because in Jones the cocaine residue was found on “an implement which is usable only for the obviously knowing use of the drug.” Id. at 1002.
Like the dollar bill in Lord, the box cutter seized from Davis is an object commonly used for legitimate purposes. Cf. Andrews v. State, 787 So. 2d 54 (Fla. 2d DCA 2001) (upholding conviction for possession of cocaine based on residue found in glass pipe). Accordingly, we reverse the judgment of conviction. On remand, the trial court is directed to discharge Davis.
Reversed and remanded with directions.
NORTHCUTT and SILBERMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gilchrist v. State, 784 So. 2d 624 (Fla. 3d DCA 2001)…s in defendant’s wallet), pet. for review dismissed, 840 S.W. 2d 958 (1992); State v. White, 535 So. 2d 929 (La.App. 2 Cir. 1988)(PCP residue found in glass vial in defendant’s jacket pocket), writ denied, 537 So. 2d 1161 (1989); cf. Davis v. State, 784 So. 2d 1225 (Fla. 2d DCA 2001)(Lord applied to cocaine trace on box cutter). In contrast is Lord v. State, 616 So. 2d at 1065, upon which the defendant and our initial opinion almost completely rely. Lord held only that the presence of trace amounts of cocaine…
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Ortiz v. State, 843 So. 2d 313 (Fla. 2d DCA 2003)…xpert opinion, the substance was cocaine. She identified her written laboratory report, which was admitted into evidence without objection. After the State rested, Mr. Ortiz moved for a judgment of acquittal. His motion was based on Davis v. State, 784 So. 2d 1225 (Fla. 2d DCA 2001), and Lord v. State, 616 So. 2d 1065 (Fla. 3d DCA 1993), which stand for the proposition that trace amounts of cocaine on common items are not sufficient to prove knowing possession of cocaine. Only in passing, and as part of his r…
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Moore v. State (Fla. 2d DCA 2020)
Authorities Cited
- Reynolds v. State, 111 So. 285 (Fla. 1926)
- State v. Eckroth, 238 So. 2d 75 (Fla. 1970)
- Avery Jones v. State, 589 So. 2d 1001 (Fla. 3d DCA 1991)
- Lord v. State, 616 So. 2d 1065 (Fla. 3d DCA 1993)
- Andrews v. State, 787 So. 2d 54 (Fla. 2d DCA 2001)