MELVIN BROWN, JOAN ANDERSON AND GEORGE BAIER, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1970-04-10
Nos. 69-143, 69-144
HOBSON, C. J., and McNULTY, J., concur., MANN, J., dissents.
240 So. 2d 507 Florida District Court of Appeal, Second District (1970) Positive Treatment
Cited by 8 cases
Topics
Ability To Maintain Control Knowledge Of Contraband

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Opinion of the Court
PER CURIAM.

ON PETITION FOR REHEARING

PER CURIAM.

The court below did not fully and sufficiently instruct the jury as to the burden of proof placed upon the State on the issue of scienter or knowledge of the appellant Baier as to the presence of the marijuana and his ability to maintain control over it. Mr. Baier was merely a visitor in the home of the other two appellants and had no proprietary interest whatsoever in the premises on which the marijuana was located.

In Frank v. State, Fla.App.1967, 199 So.2d 117, it was held at page 120:

“If the premises on which the drugs are found is not in the exclusive but 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.”

There is a conflict in the record as to whether or not appellant Baier had any knowledge whatsoever of the marijuana growing in the backyard' of the premises. Appellant Baier, being strictly a visitor on the premises and having no proprietary interest whatsoever in them, was entitled under the Frank case, supra, to a full, complete and sufficient instruction on the issue of scienter and his ability to maintain control over the marijuana, which was *508not afforded to him under the instruction given by the trial court.

For the reasons stated above the judgment and sentence of appellant Baier is reversed and the case is remanded for a new trial.

HOBSON, C. J., and McNULTY, J., concur.

MANN, J., dissents.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Griffin v. State, 276 So. 2d 191 (Fla. 4th DCA 1973)
    …he evidence of the defendant’s non-exclusive possession of the premises. See Arant v. State, Fla.App.1972, 256 So. 2d 515, Torres v. State, Fla.App. 1971, 253 So. 2d 450, Kirtley v. State, Fla.App.1971, 245 So. 2d 282, Brown v. State, Fla.App. 1970, 240 So. 2d 507, cert. denied, 244 So. 2d 435, and Frank v. State, supra. We fail to find in this record that the state presented sufficient other evidence to provide a reasonable basis for a jury to infer that the defendant knew of the presence of the narcotics i…
  • Rowe v. State, 250 So. 2d 920 (Fla. 2d DCA 1971)
    …395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, for exposition of the harmless error rule. State v. Garcia, Fla.1970, 240 So. 2d 633. . Roby v. State, Fla.App.2d 1969, 229 So. 2d 604, reversed Fla.1971, 246 So. 2d 566; Brown v. State, Fla.App.2d 1970, 240 So. 2d 507. . See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance, § 2.3 (Approved Draft 1968). .Davis v. State, Fla.1960, 123 So. 2d 703; American Bar Association Project on Minimum Sta…
  • Griffin v. State, 280 So. 2d 60 (Fla. 4th DCA 1973)
    …vidence was insufficient to support the judgment of conviction in Information No. 3S9S. Accordingly, the judgment and sentence in Information No. 3595 is hereby reversed. Langdon v. State, Fla.App.1970, 235 So. 2d 321; Brown v. State, Fla.App. 1970, 240 So. 2d 507; Markman v. State, Fla.App.1968, 210 So. 2d 486; Kirtley v. State, Fla.App. 1971, 245 So. 2d 282; Torres v. State, Fla.App.1971, 253 So. 2d 450; and Arant v. State, Fla.App.1972, 256 So. 2d 515. However, with respect to defendant’s judgment of conv…

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