GEORGINA MATHIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Conviction for possession with intent to sell cocaine near a child care facility reversed and reduced to simple possession because the trial court omitted the essential "intent to sell" element from the jury instruction, though the imposed sentence was permissible for simple possession.
A conviction for possession with intent to sell cocaine within 1000 feet of a child care facility must be reversed when the jury instruction omits the essential element of intent to sell, even absent objection, because the jury may have convicted on a non-existent lesser offense.
[1] Omission of an essential element of an offense from jury instructions requires reversal even absent trial objection when the element was hotly disputed and the jury could…
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Join FLexlaw to unlock all legal intelligence“the failure to instruct on an essential element of the offense, which was a hotly disputed issue at trial and resulted in the possibility that the defendant was found guilty of a non-existent offense, "simple possession of contraband within 1000 feet of a child care facility," mandates reversal”
Court explaining why reversal is required despite lack of objection below
Mathis was convicted by jury of possession with intent to sell cocaine within 1000 feet of a child care facility. The trial court's jury instruction f…
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The conviction on appeal for possession with intent to sell cocaine within 1000 feet of a child care facility, as found by the jury, may not stand because the court fundamentally erred in omitting that part of the standard jury instruction which concerned the necessity that any possession be “with the intent to sell” the contraband. § 893.13(l)(c)(l), Fla. Stat. (2006). Although the omission was not objected to below, the failure to instruct on an essential element of the offense, which was a hotly disputed issue at trial and resulted in the possibility that the defendant was found guilty of a non-existent offense, “simple possession of contraband within 1000 feet of a child care facility,” mandates reversal. See State v. Delva, 575 So.2d 643 (Fla.1991); James v. State, 16 So.3d 322 (Fla. 4th DCA 2009); Wolfork v. State, 992 So.2d 907 (Fla. 2d DCA 2008); Castillo v. State, 929 So.2d 1180 (Fla. 4th DCA 2006); Pratt v. State, 601 So.2d 619 (Fla. 2d DCA 1992); Mercer v. State, 656 So.2d 555 (Fla. 1st DCA 1995).
Because the sentence actually imposed — 259 days on probation and 259 days in jail with 258 days of credit for time served — fell within the permissible limits for the third degree felony of simple possession, it is necessary only, as the appellant suggests, to reduce the adjudicated crime to simple possession, of which the jury necessarily found her guilty. A new trial will not be required.
Affirmed as modified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Castillo v. State, 929 So. 2d 1180 (Fla. 4th DCA 2006)
- Mercer v. State, 656 So. 2d 555 (Fla. 1st DCA 1995)
- James v. State, 16 So. 3d 322 (Fla. 4th DCA 2009)
- Kendall Douglas Pratt v. State, 601 So. 2d 619 (Fla. 2d DCA 1992)
- Wolfork v. State, 992 So. 2d 907 (Fla. 2d DCA 2008)