D.R.S., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a conviction for possession of a controlled substance requires the substance to be introduced into evidence, if available.
D.R.S. was found delinquent for marijuana possession, but the marijuana was never introduced into evidence at trial. D.R.S. preserved this issue by ob…
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NORTHCUTT, Judge.
The State filed a petition alleging that D.R.S. was a delinquent child because he possessed marijuana. After a bench trial, the circuit court found D.R.S. guilty, withheld adjudication of delinquency, and ordered him to obtain substance abuse treatment. In this appeal, D.R.S. challenges the sufficiency of the evidence to support the finding of guilt based on the fact that the State failed to introduce the marijuana at trial. We reverse.
“[W]hen 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). But a defendant may not raise this issue for the first time on appeal; he or she must put the trial court on notice that the error has occurred. Id. D.R.S. sufficiently preserved this error. When the State first attempted to introduce the marijuana, D.R.S.’s counsel objected on the ground that the chain of custody had not been established. The court sustained the objection. Then, in closing argument, counsel asked the court to find D.R.S. not guilty because “[t]here is no marijuana in evidence right now.” Moreover, the prosecutor had also pointed out this defect to the court. The G.E.G. court remarked that if a trial court knew of the defect in the State’s case, it “would undoubtedly permit the [S]tate to 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 of the offense, and we remand with directions to enter a dismissal.
VILLANTI and LaROSE, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Zetrouer v. State (Fla. 2d DCA 2022)…error on this issue. See G.E.G. v. State, 417 So. 2d 975, 977 (Fla. 1982) ("[W]hen a defendant is charged with possession of a controlled substance, that substance, if available, must be introduced into evidence . . . ."); see also D.R.S. v. State, 912 So. 2d 1280, 1281 (Fla. 2d DCA 2005); Williams v. State, 870 So. 2d 71, 71 (Fla. 2d DCA 2003). Accordingly, we reverse Zetrouer's conviction for possession of marijuana and remand for a new sentencing hearing using a corrected scoresheet. See Fernandez v. Stat…
Authorities Cited
- G. E. G. v. State, 417 So. 2d 975 (Fla. 1982)
- Montrey Mack v. State, 711 So. 2d 1154 (Fla. 2d DCA 1998)
- Marquel D. Williams v. State, 870 So. 2d 71 (Fla. 2d DCA 2003)
- Univ. Med. Ctr., Inc. v. Blanchard, 843 So. 2d 313 (Fla. 1st DCA 2003)
- Ortiz v. State, 843 So. 2d 313 (Fla. 2d DCA 2003)