IRA DENNIS MARKMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Markman was convicted of narcotics possession based on contraband found in an apartment he jointly rented with others and to which a third party also had access. The court reversed, holding that when premises are jointly controlled, the state must prove the defendant's actual knowledge of the drugs' presence, rather than merely inferring it from possession.
The conviction must be reversed because the state failed to establish beyond a reasonable doubt that Markman had knowledge of the narcotics' presence. When premises are jointly controlled rather than exclusively controlled, knowledge cannot be inferred but must be proven by actual evidence or incriminating circumstances.
“before one charged with unlawfully possessing narcotic drugs may be convicted, the State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on premises occupied and controlled by him, either exclusively or jointly with others.”
Establishes the fundamental requirement that knowledge of drug presence must be proven in all possession cases, whether exclusive or joint.
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Join FLexlaw to unlock all legal intelligenceMarkman and Fischer rented an apartment in Miami Beach where police, executing a search warrant, found contraband narcotics. Markman was not present a…
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The appellant was charged with possession of narcotics, in violation of § 398.-03, Fla.Stat., F.S.A. Following non-jury trial, he was adjudicated guilty and sentenced accordingly. He takes this appeal, and the only point preserved for review is the sufficiency of the evidence to support the conviction.
The record on appeal reveals that the appellant and one Fischer had rented an apartment in Miami Beach. Pursuant to a search warrant, municipal police entered said apartment wherein they found contraband, contrary to the statute. The appellant was not present. The evidence indicated that in addition to his and Fischer’s right to reside in the apartment, a certain third person named Goldfinger had access thereto and that the appellant spent very little time in the premises. The evidence was also to the effect that between the time the appellant had last been in the premises and the search, at least one-half dozen other people had entered the premises.
The evidence appears to be insufficient to support the judgment of con*487viction. If the premises had been in the sole custody and control of the appellant the contrary conclusion would apply, and the judgment should be affirmed. However, it is apparent that when the premises were in the joint control of the appellant and others, different principles apply. See: Frank v. State, Fla.App.1967, 199 So.2d 117, wherein the following is found at page 120:
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“ * * * it appears to be established in this state that before one charged with unlawfully possessing narcotic drugs may be convicted, the State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on premises occupied and controlled by him, either exclusively or jointly with others. If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive. If the premises on which the drugs are found is not in the exclusive hut only in the joint possession of the accused, knowledge of the drugs’ presence on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. * * * ” [Emphasis added.]
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The instant case is controlled by the latter portion of the quoted provisions, and the proof fails to support the contention that the appellant had the knowledge of the contraband present in the premises. It is recognized that this knowledge may be established by actual incriminating statements, of which there were none in this case, or circumstances from which the jury might infer knowledge. However, other than the mere fact of joint control of the premises, there are no circumstances revealed by this record to support this item of proof. This is not sufficient in a nonexclusive situation. See also: People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177.
Therefore, the judgment and sentence here under review be and the same is hereby reversed and the trial court be and it is directed to discharge the defendant from the cause.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (31 total)
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Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974)…testimony as a whole, sustained the jury’s finding that the defendant knew of the presence of the contraband and had the ability to reduce it to his physical possession. Arant v. State (Fla.App.1972), 256 So. 2d 515; Markman v. State (Fla.App.1968), 210 So. 2d 486; Skold v. State, 263 So. 2d 627 (Fla.App.1972). Let us now turn to the second point on appeal — whether or not the Trial Judge should have reduced the charge to a misdemeanor possession of marijuana since the State failed to prove that the defendan…
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Arant v. State, 256 So. 2d 515 (Fla. 1st DCA 1972)…accused, the inference of knowledge is rebuttable and not conclusive. . . . ” Appellant’s status as a mere visitor in his codefendant’s apartment, however frequent such visits were, requires the application of a different rule. In Markman v. State, 210 So. 2d 486 (Fla.App.1968), the court adhered to the rule that where the premises in which the contraband is found is not in the exclusive possession of the defendant it becomes incumbent on the State to prove knowledge of the drug’s presence and the ability to…
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Reis v. State, 248 So. 2d 666 (Fla. 3d DCA 1971)…sufficiency of evidence Reis asserts the state failed to prove that she “knowingly” had marijuana in her possession. See Langdon v. State, Fla.App.1970, 235 So. 2d 321; Chariott v. State, Fla.App.1969, 226 So. 2d 359; Markman v. State, Fla.App.1968, 210 So. 2d 486; and Frank v. State, Fla.App.1967, 199 So. 2d 117. In Frank, supra, it was held that proof of knowledge in such cases might consist of “evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967)