ANTHONY L. WHITEHURST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Whitehurst appeals his convictions for drug possession with intent to sell and resisting arrest. The appellate court reverses his convictions, finding that the trial court committed reversible error by failing to instruct the jury that the State must prove Whitehurst knew of the illicit nature of the substances possessed, as required under Chicone v. State at the time his offenses occurred.
The trial court committed reversible error by failing to give the Chicone instruction because Chicone was the controlling law at the time Whitehurst committed his offenses in March 2001, and subsequent legislative amendments were not applied retroactively.
[1] A defendant charged with sale of cocaine is entitled to a jury instruction on the element of guilty knowledge of the illicit nature of the substance when the offense occu…
[2] Failure to provide a requested jury instruction on the element of guilty knowledge of the illicit nature of a controlled substance in a sale case, where such instruction…
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Join FLexlaw to unlock all legal intelligence“Pursuant to the law that was in effect at the time that Whitehurst committed his offenses, he is correct.”
Establishes that the court will apply the substantive law in effect at the time the offenses were committed, not subsequently enacted amendments.
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Join FLexlaw to unlock all legal intelligenceWhitehurst committed the offenses on March 6, 2001, when he was charged with possession of cocaine with intent to sell, possession of cannabis with in…
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DAVIS, Judge.
Anthony L. Whitehurst challenges his convictions for possession of cocaine with intent to sell, possession of cannabis with intent to sell, and resisting arrest without violence. We find merit in only one of the issues Whitehurst raises on appeal and reverse on that basis alone.
Whitehurst committed his offenses on March 6, 2001. He argues that the law in effect at that time required the trial court to instruct the jury that the State was required to prove, as an element of the crime of possession, that the defendant knew of the illicit nature of the substance. See Chicone v. State, 684 So. 2d 736 (Fla.1996). Whitehurst argues further that the trial court’s failure to give his requested instruction was reversible error. See McMillon v. State, 813 So. 2d 56 (Fla.2002). Pursuant to the law that was in effect at the time that Whitehurst committed his offenses, he is correct.
Subsequent to Chicone, the Florida Supreme Court took the Chicone analysis a step further and extended the requirement of giving the jury instruction regarding knowledge to even those cases in which the defendant does not deny having knowledge of the illicit nature of the substance. See Scott v. State, 808 So. 2d 166 (Fla.2002). In response to Scott and Chicone, the legislature amended chapter 893, Florida Statutes, stating that those two cases were contrary to legislative intent.1 However, we are still required to apply a Chicone analysis to the instant case due to the timing of Whitehurst’s offenses.
At the time that Whitehurst committed his offenses in March 2001, Chicone was still good law. The superseding legislative amendment was not effective until May 13, 2002, and courts have determined that the amendments are not to be applied retroactively. See Blunt v. State, 831 So. 2d 770 (Fla. 4th DCA 2002); Norman v. State, 826 So. 2d 440 (Fla. 1st DCA 2002), review denied, 845 So. 2d 892 (Fla.2003). Having concluded that the court committed reversible error in failing to give the Chicone instruction as requested, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
KELLY and CANADY, JJ., concur. . § 893.101, Fla. Stat. (2002).
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Balmori v. State, 985 So. 2d 646 (Fla. 2d DCA 2008)…ate was not required to prove that Mr. Balmori had knowledge of the heroin's illicit nature. See Garcia v. State, 901 So. 2d 788, 792 n. 1 (Fla.2005) (citing § 893.101, Fla. Stat. (2002), which went into effect on May 13, 2002); Whitehurst v. State, 852 So. 2d 902, 903 (Fla. 2d DCA 2003). . The witness in Peals was the alleged victim who had initially accused the defendant of attacking her but then exonerated him in her trial testimony. The Peals court found that because of the victim’s shifting version of […
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Jackson v. State, 995 So. 2d 535 (Fla. 2d DCA 2008)…guished from a mere involuntary or superficial possession.” Reynolds v. State, 92 Fla. 1038, 111 So. 285, 286 (1926); see also Chicone v. State, 684 So. 2d 736, 738 (Fla.1996), superseded by statute on other grounds as stated in Whitehurst v. State, 852 So. 2d 902, 903 (Fla. 2d DCA 2003). “Mere proximity to contraband, without more, is legally insufficient to [*540] prove possession.” Pena v. State, 465 So. 2d 1386, 1388 (Fla. 2d DCA 1985); see also Person v. State, 950 So. 2d 1270, 1272 (Fla. 2d DCA 2007).…
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Barrientos v. State, 1 So. 3d 1209 (Fla. 2d DCA 2009)…e was cocaine or a mixture containing cocaine. See Nedd v. State, 965 So. 2d 1287, 1288 n. 3 (Fla. 2d DCA 2007); Snell v. State, 939 So. 2d 1175, 1179 n. 1 (Fla. 4th DCA 2006). Section 893.101 became effective May 13, 2002. See Whitehurst v. State, 852 So. 2d 902, 903 (Fla. 2d DCA 2003). Because the date of Jose A.’s alleged offense was February 27, 2006, section 893.101 is applicable to his case. For this reason, the State was not required to prove Jose A.’s knowledge of the nature of the substance to estab…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chicone v. State, 684 So. 2d 736 (Fla. 1996)
- Scott v. State, 808 So. 2d 166 (Fla. 2002)
- McMILLON v. State, 813 So. 2d 56 (Fla. 2002)
- Norman v. State, 826 So. 2d 440 (Fla. 1st DCA 2002)
- Blunt v. State, 831 So. 2d 770 (Fla. 4th DCA 2002)