Florida Court Cases - Case Law and Opinions from the Courts of Florida - unoffical reports - Opinions

ROMINGER LEGAL

Florida Case Law & Florida Court Opinions - Florida Law

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
RAYMOND EDWARD BARNES,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D01-0084
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 14, 2004.
An appeal from the Circuit Court for Santa Rosa County.
Ronald W. Swanson, Judge.
Nancy A. Daniels, Public Defender; and Kathleen Stover, Assistant Public
Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; and Charlie McCoy, Senior Assistant Attorney
General, Tallahassee, for Appellee.
OPINION ON REMAND FOR RECONSIDERATION
BROWNING, J.
The Supreme Court of Florida remanded this case for reconsideration in light
of Reed v. State, 837 So. 2d 366 (Fla. 2002). The State was ordered to show cause

why Appellant's conviction should not be reversed on the authority of Reed, and
Appellant filed a reply to the State's response. Concluding that Reed compels a
reversal, we remand the case for a new trial before a jury properly instructed in
accordance with Reed. See also Goodman v. State, 839 So. 2d 902 (Fla. 1st DCA
2003).
The State charged Appellant with unlawfully and knowingly possessing a
controlled substance, Lortab/Hydrocodone1 (Count One), and with resisting an officer
without violence (Count Two). Count Two eventually was dismissed due to a
deadlocked jury and is not pertinent to this appeal.
In opening argument, the defense admitted that when narcotics officers had
approached him on the night in question, Appellant was carrying a bag containing
Lortab tablets. Appellant's defense was that he had painful bone spur problems and
secured some prescription pain medication from his stepfather, but Appellant was not
told what the pills were; and that Appellant did not know of the illicit nature of the pills.
In other words, whether or not Appellant knew that the tablets he was carrying were
1 Hydrocodone is the active ingredient in the pharmaceutical preparation
known as Lortab, which is an analgesic used for pain relief. Hydrocodone is a
controlled substance listed under Schedule II in section 893.03(2)(a)1.j., Florida
Statutes (1999). Subject to exceptions not pertinent here, actual or constructive
possession of a controlled substance violates section 893.13(6)(a), Florida Statutes
(1999).
-2-

a controlled substance was disputed at trial.
With defense counsel's acquiescence, the trial court read a jury instruction on
Count One stating in pertinent part:
Before you can find the Defendant guilty of the crime charged the State
must prove the following three elements beyond a reasonable doubt: One,
that the Defendant possessed a certain substance; two, the substance was
Lortab or Hydrocodone; and three, that the Defendant had knowledge of
the presence of the substance.
In other words, the jury was not instructed that before it could find Appellant guilty of
the crime charged in Count One, it would have to find that Appellant knew of the illicit
nature of the substance he possessed. The jury found Appellant guilty as charged in
Count One, and Appellant was sentenced under the Criminal Punishment Code to 3
years and 4 months of incarceration. On the authority of Reed v. State, 783 So. 2d
1192 (Fla. 1st DCA 2001), we affirmed the judgment and sentence. Barnes v. State,
815 So. 2d 745 (Fla. 1st DCA 2002).
Subsequently, in Reed, 837 So. 2d at 366, the Supreme Court of Florida found
fundamental error where an inaccurate definition of the disputed element of malice in
the standard jury instruction reduced the State's burden of proof on that essential
element of the charged offense. Id. at 369. The court applied its decision retroactively
to cases, like Appellant's, pending on direct review. Id. at 370.
By analogy, the instruction given to Appellant's jury on Count One reduced the
-3-

State's burden of proof on an essential element of the offense charged that was
disputed at trial: whether Appellant knew of the illicit nature of the substance he
carried. See McMillon v. State, 813 So. 2d 56, 58 (Fla. 2002); Scott v. State, 808 So.
2d 166, 168 & 172 (Fla. 2002) (stating that defendant's knowledge of illicit nature of
controlled substance is element of offense of possession, and holding that instruction
that State must prove this element must be given as part of standard jury instructions);
Chicone v. State, 684 So. 2d 736 (Fla. 1996). The elimination of an element of proof
would have allowed the jury to convict Appellant because he knew the substance was
present, even if the jury believed that he did not know its illicit nature. Because the
incomplete instruction given reduced the State's burden of proof, it was material to
what the jury had to determine in order to convict Appellant. See Reed, 837 So. 2d
at 369. The Supreme Court's language in Reed states unequivocally that under such
circumstances, the error is "fundamental" and, thus, "is not subject to harmless error
review." Id. at 369-70; Scott, 808 So. 2d at 167; Stewart v. State, 420 So. 2d 862,
863 (Fla. 1982) (acknowledging case law stating that "fundamental error occurs only
when the omission [in the jury instruction] is pertinent or material to what the jury must
consider in order to convict"); Gerds v. State, 64 So. 2d 915, 916 (Fla. 1953) ("It is
an inherent and indispensable requisite of a fair and impartial trial under the protective
powers of our Federal and State Constitutions as contained in the due process of law
-4-

clauses that a defendant be accorded the right to have a Court correctly and
intelligently instruct the jury on the essential and material elements of the crime charged
and required to be proven by competent evidence. Such protection afforded an
accused cannot be treated with impunity under the guise of `harmless error.'"). Cf.
State v. Delva, 575 So. 2d 643 (Fla. 1991) (holding that failure to instruct jury on
element of crime that is not disputed is not fundamental error and, thus, is subject to
contemporaneous objection rule). The enactment of section 893.101, Florida Statutes
(2002), which became effective as of May 13, 2002, does not change the result in the
case at bar, which involves a 1999 offense. See Thomas v. State, 844 So. 2d 723 (Fla.
5th DCA 2003); Starling v. State, 842 So. 2d 992, 993 n.1 (Fla. 1st DCA 2003);
Goodman, 839 So. 2d at 903; Blunt v. State, 831 So. 2d 770, 772 (Fla. 4th DCA
2002); Norman v. State, 826 So. 2d 440 (Fla. 1st DCA 2002).
Given the clear mandate in Reed, we REVERSE Appellant's conviction and
REMAND for a new trial.
BOOTH and POLSTON, JJ., CONCUR.
-5-

	ROMINGER LEGAL
		Florida Case Law & Florida Court Opinions - Florida Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE