JOHN EDWARD SHANNON AND GARY LEE SEA, APPELLANTS,

v.

STATE OF FLORIDA, APPELLEE

JOHNSON, Acting Chief Judge.

These are two consolidated appeals from final judgments entered pursuant to jury verdicts, finding the appellants guilty of possession of cannabis in the amount of less than five grams.

The record reveals from the testimony of the State that about 10:00 p. m. on the evening of March 21, 1974, an officer of the Jacksonville Sheriff’s Office was on patrol when he observed a vehicle traveling on the street with only one headlight. The officer stopped the vehicle and the driver got out of the vehicle, a small truck, and met the officer about the end of the truck. The officer requested the driver’s license and was told by the driver he did not have his license with him. The truck tag indicated that the same was not from Duval County. At or about that time, the officer told the driver he would have to arrest him and carry him to jail. Also, at about that same time, the arresting officer had radioed for backup help which had arrived just at or before or after the driver was told he was under arrest. The time sequences of the arrival of the backup officer was not material in.this case.

The driver was then placed in the officer’s patrol car and he and the other officer then proceeded-to conduct an inventory search of the truck before taking it to the police station. There were two passengers in the truck with the driver, one of them being the appellant Gary Lee Sea. The record is not too clear as to whether the two passengers remained in the truck or whether one or both got out, but again the testimony was not material to the determination of this case.

At the search, the several bags of what the officers thought was, and what proved by lab test, to be marijuana, were on the seat close to the driver’s side and some in a motorcycle helmet lying on the floor of the truck on the passenger’s side. The passenger, appellant, Sea, was arrested and charged with the same possession as his co-appellant, Shannon.

The trial court appointed the Public Defender’s Office to represent appellant Shannon. Appellant Sea had private counsel at that time and through the lower court proceedings. The Public Defender’s Office represented both appellants on this appeal.

Motions to suppress the evidence of the marijuana were made by both appellants and testimony taken which was approximately as detailed hereinabove in this opinion. The motions were denied and motions for acquittal were made and denied. The trial court stated that the motions presented rather interesting and close questions, but under all the circumstances of the case, the State had made the prima facie case. Contention was made by both appellants that the burden of proof was on the State to prove the search without a search ^warrant was legal. The trial court ruled that the motion to suppress did not make a prima facie case and that the court would require appellants to produce evidence to demonstrate the allegations contained in their motion. This is in exact conformity with Criminal Procedure Rule 3.190(h)(3). The motion itself shows that the arrest was for a legal cause, one headlight, and no driver's license. This made the search incident to the legal arrest. As to the appellant Sea, he was in possession, constructive or actual, of at least part of the marijuana. It was in plain view to the appellant as it was to the officers. The evidence was legally seized. As to the insufficiency of the evidence, this is without merit, too. There was enough evidence to justify the jury verdicts.

The prosecutor’s remarks in his closing argument bordered on error, but the trial court’s instruction was enough to render the remarks as harmless, anyway.

Although there were several very technical questions which arose from the beginning to the end of this case, we think and so hold, that the appellants have failed to demonstrate error that would merit a reversal.

Therefore, the judgments and sentences are affirmed. BOYER, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

I agree with the majority opinion that the procedure followed by the trial court on the motion to suppress was not error. The court ruled that the motion to suppress, standing alone without evidence, did not make a prima facie case and required appellants to present evidence. Appellant Shannon, the driver of the automobile, then took the stand and testified to the car being stopped by the officers and that the search was made. The trial court then ruled that appellants had presented a prima facie case, whereupon the state went forward with the evidence to show the legality of the search. Such procedure was in accordance with Rule 3.190(h)(3), F.R.Cr. P., and Bicking v. State, Fla.App., 293 So. 2d 385.

I respectfully dissent as to the final point raised by appellants. It is my view that the trial court erred in not granting the appellants’ motion for mistrial upon the legal intern of the state attorney’s office commenting upon the appellants’ failure to take the witness stand in his final argument to the jury. Appellants’ defense was that the marijuana found in the automobile was not shown to be in their possession and control. A third person in the automobile had stated that it belonged to him and it was found in his helmet and under the seat of the car. The legal intern’s comment to the jury in his final argument was as follows:

“ . . . Nobody has come in and said that the marijuana was not theirs. Nobody has come in and said that the marijuana could have been put there by someone else. The only thing that has been said is that these.two men didn’t know. I didn’t know it was there, fifteen bags of it, three bags found in the middle under the driver’s seat.”

The trial judge denied appellants’ motion for mistrial and instructed the jury to disregard the remarks, instructing them that the burden was upon the state to prove the appellant’s guilt beyond and to the exclusion of every reasonable doubt and it was not encumbent upon the defendants to prove their innocence. In my opinion the instruction could not cure the prejudicial remarks. I would reverse for a new trial.