The Florida Supreme Court is in summer recess. The next regular opinions are expected 26 August 2010.
In NICHOLAS v. STATE, No. 2D07-5400 (Fla. 2d DCA Jul. 28, 2010), the Defendant was charged with trafficking in cocaine, but was not in actual possession of the cocaine. The court held that because the Defendant was not found in actual possession of cocaine, the State's trafficking charge against him was premised upon his constructive possession of the cocaine. To prove constructive possession, the State must show beyond a reasonable doubt that the defendant (1) knew of the presence of the contraband and (2) had the ability to exercise dominion and control over it. Furthermore, where contraband is found in a location accessible to more than one person, the defendant's knowledge of the presence of the contraband on the premises and his ability to exercise dominion and control over it will not be inferred and must be established by independent proof. Such independent proof may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant's knowledge.
The State presented no independent proof that the Defendant knew of the presence of the cocaine. The Defendant was not present when the cocaine was found, the location was not owned by him or leased to him, he made no incriminating statements linking him to the cocaine, and his fingerprints were not on that cocaine or on any other evidence found at that location. The Defendant's statements were not sufficient to establish his actual or constructive possession of the cocaine. As a result, none of the evidence presented by the State established that the Defendant exercised dominion and control over any of the cocaine at issue. Without dominion and control, a conviction for trafficking cannot be sustained. Therefore the DCA reversed the conviction and sentence for trafficking in cocaine.
In NORMAN v. STATE, No. 2D09-3300 (Fla. 2d DCA Jul. 30, 2010), the trial court accepted the Defendant's plea and set off his sentencing for a furlough. The trial court stated "all bets would be off if you don't show up." Sentencing was set for the date he was to return from the furlough. The Defendant failed to return from the furlough and appear at the sentencing as agreed. Consequently, at a later hearing at which the Defendant was present, the trial court sentenced him to the maximum legal sentence. The DCA held that in such situations "it is essential that the trial court make very clear to the defendant that the agreed-upon sentence is conditioned upon the defendant's subsequent timely appearance at the specifically articulated sentencing date and that his liberty during the furlough must be without violation of the law. It is also imperative that the trial court inform the defendant that if he fails to abide by these two conditions, the trial court is not required to allow him to withdraw his plea and he could be sentenced to the maximum sentence provided by law." Here the DCA held that the trial court had done so, therefore the sentence was affirmed.
In STATE OF FLORIDA, OFFICE OF ATTORNEY GENERAL, and THE PUBLIC DEFENDER, TENTH JUDICIAL CIRCUIT v. HON. R.B. "CHIPS" SHORE, CLERK, MANATEE COUNTY, No. 2D10-1932 (Fla. 2d DCA Jul. 28, 2010), the court held that in publicly funded cases, clerks of court are required to provide the parties to appeals with paper (as opposed to electronic) transcripts of court proceedings.
