CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2013 WL 3835837, 2013 Fla. App. LEXIS 11740
SLEET, Judge. Ricardo Delgado-George challenges his judgment and sentence for actual or constructive possession of a conveyance used for the trafficking, sale, or manufacture of controlled substances in violation of section 893.1351(2), Florida Statutes (2010). Because we find that the State presented insufficient evidence to support a conviction under section 893.1351(2), we reverse Delgado-George’s judgment and sentence....
...d. The jury returned a verdict of guilty on all three counts. On appeal, Delgado-George argues that the trial court erred by denying his motion for judgment of acquittal because the State presented insufficient evidence to support a conviction under section 893.1351(2)....
...State,
830 So.2d 792, 803 (Fla.2002)). This case also involves an issue of statutory interpretation, which is also subject to de novo review. Mendenhall v. State,
48 So.3d 740, 747 (Fla.2010). At issue in this case is whether Delgado-George’s actions violated section
893.1351(2). Section
893.1351(2) provides, in pertinent part:' A person may not knowingly be in actual or constructive possession of any place, structure, .or part thereof, trailer, or other conveyance with the knowledge that the place, structure, or part thereof...
...Furthermore, a presumption exists that the legislature understands the meaning of the words it uses and intends those meanings to apply in the statute. Id. (citing Overstreet v. State,
629 So.2d 125, 126 (Fla.1993)). “[W]ill be used” is the operative language of section
893.1351(2)....
CopyCited 1 times | Published | Supreme Court of Florida
...3d 720] and amended in
2018.
25.13(f) [OWNERSHIP] [LEASE] [RENTAL] OF A PLACE FOR
[[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE]
[MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR
SALE OR DISTRIBUTION]
§ 893.1351(1), Fla....
...[Trafficking in (insert name(s) of controlled substance)] [Sale
of a Controlled Substance] [Manufacture of a Controlled
Substance that was intended for sale or distribution to
another].
Inference. Give if applicable. § 893.1351(4), Fla....
...However, only certain controlled substances qualify for
prosecution under the trafficking statute, §
893.135, Florida Statutes. Accordingly,
the exact nature of the substance must be proven if the State is prosecuting under
the trafficking prong of §
893.1351(1), Florida Statutes.
A special instruction will be required if the defense is that the defendant did
not know of the illicit nature of the controlled substance. See §
893.101, Fla. Stat.
§
893.1351(1), Florida Statutes, requires that the place will be used for
certain drug-related activity while §
893.1351(3), Florida Statutes, requires that the
place was being used to manufacture a controlled substance....
CopyPublished | Florida 2nd District Court of Appeal
...efendant had knowledge that the place, structure or part thereof, trailer or conveyance would be used for the purpose of sale or distribution of a controlled substance. Let us state at the outset, the first element in this instruction was erroneous. Section 893.1351(2) reads: “A person may not knowingly'■ be in actual or constructive possession of any place, structure, or part thereof, trailer, or other conveyance with the knowledge that the place, structure, or part thereof, trailer, or con...
...ly used, both at the charge conference and at the time the instructions were read to the jury. In his petition now before us, Mr. Thames claims this instruction was fundamentally erroneous because it lacked the first element of knowledge required by section 893.1351(2)....
...With that in mind, then, we turn to the substantive' point of Mr, Thames’ argument. The jury instruction utilized in Mr. Thames’ trial failed to indicate that Mr. Thames had to “knowingly” be in actual or constructive possession of the conveyance to be found guilty of violating section 893.1351(2)....
...e knowledge element of his offense. It is difficult for us to fathom how that could have mattered, though. Mr. Thames does not contend that the jury’s instructions as to what constituted his possession of this particular conveyance for purposes of section 893.1351(2) were in any way inaccurate....
...Thames did not testify at his trial, but his expired registration of what appeared to be the same vehicle was admitted into evidence at the trial. . The instructions did not define actual or constructive possession. Although the information. charged Mr, Thames with the crime defined in section
893.1351(2), and The jrny instruction , lists elements of that offense, the written jury instructions refér to section
893.13(7)(a)(5), which prohibits a person from keeping or maintaining “any store, shop, warehouse, dwelling, building, v...
...Here, however, it is simply impossible to imagine any circumstance under which it could be said that Mr. Thames inadvertently or unknowingly possessed the Chevrolet Caprice he was leaning against when he conducted this drug transaction. . Our colleague recognizes that section 893.1351(2)’s inclusion of the word "knowingly” imparts “a distinct mental element” into this criminal offense....
CopyPublished | Florida 2nd District Court of Appeal
...Morris
pulled up to the residence and went inside while his wife waited in the vehicle. A few
minutes later, he came out with the package, put it in the back seat of the vehicle, and
left. The police arrested Mr. Morris shortly thereafter.
Section 893.1351(2), Florida Statutes (2016), prohibits knowingly
possessing a "conveyance with the knowledge that the ....
...intended drug sale or that there was anything "unique about th[e] vehicle that would
indicate its intended use was to traffic, sell, or manufacture controlled substances." Id.
at 1034. This court concluded that the State failed to show that a crime was committed
under section 893.1351(2) because the evidence was insufficient to prove a nexus
between the defendant's intent to sell and the use of the vehicle....
CopyPublished | Supreme Court of Florida
...We authorize for
publication and use instruction 25.13(f) as amended by the Committee, and new
instructions 25.13(g) and 25.13(h) with the modification discussed below.
New instructions 25.13(g) and 25.13(h) instruct upon the offenses codified
in section 893.1351, subsections (1) and (2), Florida Statutes (2019), respectively,
track the statutory language, and include relevant definitions....
... APPENDIX
25.13(f) [OWNERSHIP] [LEASE] [RENTAL] OF A PLACE FOR
[[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE]
[MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR
SALE OR DISTRIBUTION]
§ 893.1351(1), Fla....
...[Trafficking in (insert name(s) of controlled substance)] [Sale of
a Controlled Substance] [Manufacture of a Controlled
Substance that was intended for sale or distribution to
another].
Inference. Give if applicable. § 893.1351(4), Fla....
...possession of various amounts of drugs. Trial judges must review not only the
evidence but also the charging document to determine all of the appropriate lesser-
included offenses.Attempted Trafficking in a Controlled Substance has a higher
maximum penalty than the crime in § 893.1351(1), Fla....
...Stat., and therefore is not
listed as a lesser included offense below.
[OWNERSHIP] [LEASE] [RENTAL] OF A PLACE FOR
[[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE]
[MANUFACTURING A CONTROLLED SUBSTANCE INTENDED
FOR SALE OR DISTRIBUTION] — 893.1351(1)
CATEGORY ONE CATEGORY TWO FLA....
...However, only certain controlled substances qualify for
prosecution under the trafficking statute, §
893.135, Florida Statutes. Accordingly,
the exact nature of the substance must be proven if the State is prosecuting under
the trafficking prong of §
893.1351(1), Florida Statutes.
A special instruction will be required if the defense is that the defendant did
not know of the illicit nature of the controlled substance. See §
893.101, Fla. Stat.
§
893.1351(1), Florida Statutes, requires that the place will be used for
certain drug-related activity while §
893.1351(3), Florida Statutes, requires that the
place was being used to manufacture a controlled substance....
...3d 192] and amended in 2020.
25.13(g) POSSESSION OF A PLACE FOR [[TRAFFICKING IN] [SALE
OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A
CONTROLLED SUBSTANCE INTENDED FOR SALE OR
DISTRIBUTION]
§ 893.1351(2), Fla....
...[Trafficking in (insert name(s) of controlled substance)] [Sale of a
Controlled Substance] [Manufacture of a Controlled Substance
that was intended for sale or distribution to another].
Inference. Give if applicable. § 893.1351(4), Fla....
...d Offenses
- 10 -
POSSESSION OF A PLACE FOR [[TRAFFICKING IN]
[SALE OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A
CONTROLLED SUBSTANCE INTENDED FOR SALE OR
DISTRIBUTION — § 893.1351(2)
CATEGORY ONE CATEGORY TWO FLA....
...Substance
Attempted [Sale]
777.04(1) & 5.1 &
[Manufacture] of a
893.13 25.2 or
Controlled Substance 25.3
[Ownership] [Lease]
893.1351(1) 25.13(f)
[Rental] of a Place for
[[Trafficking in] [Sale
of] a Controlled
Substance]
[Manufacturing a
Controlled Substance...
...Stat. However, only certain controlled substances qualify for
prosecution under the trafficking statute, §
893.135, Fla. Stat. Accordingly, the
exact nature of the substance must be proven if the State is prosecuting under the
trafficking prong of §
893.1351(2), Fla....
...Stat.
A special instruction may be required to address the nexus between a
conveyance, place, structure, trailer, and the drug activity. See Hunt v. State,
256
So. 3d 243 (Fla. 2d DCA 2018) and Delgado-George v. State,
125 So. 3d 1031
(Fla. 2d DCA 2013).
- 11 -
§
893.1351(1) and (2), Fla. Stat., require that the place will be used for
certain drug-related activity while §
893.1351(3), Fla....
...State,
198 So.
3d 1005 (Fla. 1st DCA 2016).
This instruction was adopted in 2020.
25.13(h) POSSESSION OF A PLACE USED TO MANUFACTURE A
CONTROLLED SUBSTANCE INTENDED FOR SALE OR
DISTRIBUTION (MINOR PRESENT OR IN RESIDENCE)
§
893.1351(3), Fla....
...substance that was intended for sale or distribution to another.
3.___At the time, (defendant) knew or should have known that a minor
was present or resided in the [place] [structure] [trailer]
[conveyance].
Inference. Give if applicable. § 893.1351(4), Fla....
...Lesser Included Offenses
- 14 -
POSSESSION OF A PLACE USED TO MANUFACTURE A
CONTROLLED SUBSTANCE INTENDED FOR SALE OR
DISTRIBUTION (MINOR PRESENT OR IN RESIDENCE) —
§ 893.1351(3)
CATEGORY ONE CATEGORY TWO FLA....
...other drugs in presence
of child younger than
16
Attempt
777.04(1) 5.1
Comments
The crimes in §§
893.1351(1), and
893.1351(2), Fla. Stats., are not
necessary lesser included offenses because they have an element that is not present
in §
893.1351(3), Fla. Stat. Specifically, §
893.1351(1) and (2), Fla. Stats., require
that the place will be used for certain drug-related activity while §
893.1351(3),
Fla....
