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D.J. v. State

District Court of Appeal of Florida, Fourth District
Mar 12, 1976
330 So. 2d 35 (Fla. Dist. Ct. App. 1976)

Summary

holding the evidence insufficient to prove possession where there was an odor of burning marijuana, a half-burned marijuana cigarette on floor next to the defendant, another half-burned marijuana cigarette on the floor by the driver's seat, a marijuana cigarette in an ashtray, a marijuana cigarette in the glove compartment, and numerous marijuana seeds in the driver's seat and on the console between the two front bucket seats

Summary of this case from K.A.K. v. State

Opinion

No. 74-800 and 74-724.

March 12, 1976.

Appeal from the Commitment of Youth Services for Seminole County, Dominick J. Salfi, J.

Franklin D. Kelley, Public Defender, Titusville, and Irving B. Gussow, Asst. Public Defender, Casselberry, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.


This is a timely appeal by the defendant, D.J., a minor, from an order adjudging her to be a delinquent child and committing her to the custody of the Division of Youth Services.

On April 16, 1974, at about 12:10 a.m., an officer stopped a vehicle occupied by four persons, including appellant, who was sitting in right front seat. The officer smelled the odor of burning marijuana emanating from the vehicle as he approached same. With the aid of a flashlight, he saw and seized: a half burned marijuana cigarette on the floor next to appellant; another half burned marijuana cigarette on the floor by the driver's seat; a marijuana cigarette in the ashtray; a marijuana cigarette in the glove compartment, none of which were burning; and numerous marijuana seeds in the driver's seat and on the console between the two front bucket seats. The officer arrested all the occupants upon a charge of possession of a controlled substance. The officer further testified that he had observed the vehicle and its occupants for approximately ten minutes prior to the arrests. His sole immediate clue, in the middle of the night, to any presence of marijuana was the smell described above. According to the evidence, the defendant at no time had actual possession of any marijuana.

The question on appeal is whether the above stated facts are sufficient to sustain the adjudication of delinquency and subsequent commitment.

It is well established that 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 drug's presence on the premises and the ability to maintain control over it by the accused will not be inferred but must be established by proof. Frank v. State, Fla.App. 1967, 199 So.2d 117, 120; Markman v. State, Fla.App. 1968, 210 So.2d 486, 487; Harris v. State, Fla.App. 1974, 307 So.2d 218, 220.

The only evidence in this case with which the State could prove knowledge of the presence of marijuana by the defendant is as quoted above. This is clearly circumstantial evidence, and in order for circumstantial evidence to be sufficient for conviction, it must be ". . . consistent with the accused's guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt." Brown v. State, 1937, 127 Fla. 225, 172 So. 921; Miller v. State, Fla.App. 1972, 270 So.2d 423, 424; Gaetano v. State, Fla.App. 1973, 273 So.2d 84, 86; Whitehead v. State, Fla.App. 1973, 273 So.2d 146, 147, 148; Harris v. State, Fla.App. 1974, 307 So.2d 218, 220.

We are of the opinion that the facts subjudice are supportive of reasonable hypotheses of the defendant's innocence and, for this reason, the Adjudication of Delinquency and Order of Commitment to Division of Youth Services hereby are reversed, with directions to discharge the appellant.

Reversed and remanded, with directions.

CROSS and MAGER, JJ., concur.


Summaries of

D.J. v. State

District Court of Appeal of Florida, Fourth District
Mar 12, 1976
330 So. 2d 35 (Fla. Dist. Ct. App. 1976)

holding the evidence insufficient to prove possession where there was an odor of burning marijuana, a half-burned marijuana cigarette on floor next to the defendant, another half-burned marijuana cigarette on the floor by the driver's seat, a marijuana cigarette in an ashtray, a marijuana cigarette in the glove compartment, and numerous marijuana seeds in the driver's seat and on the console between the two front bucket seats

Summary of this case from K.A.K. v. State

holding as insufficient evidence to establish constructive possession of marijuana odor of burning marijuana, half-burned marijuana cigarette on the floor next to defendant and on the floor by the driver's seat, marijuana cigarette found in ashtray and in glove compartment, and numerous marijuana seeds in seats

Summary of this case from Thomas v. State

concluding that half-burned marijuana cigarette found by defendant/front-passenger was insufficient to prove that defendant constructively possessed cocaine

Summary of this case from J.M. v. State

In D.J. v. State, 330 So.2d 35 (Fla. 4th DCA 1976), another case finding insufficient evidence of possession of marijuana, the defendant was a joint occupant of a car in which small amounts of marijuana were found, in contrast to the facts of the case at hand, in plain view, some of which was in close proximity to defendant.

Summary of this case from Fedor v. State

In D.J. v. State, 330 So.2d 35 (Fla. 4th DCA 1976), we reversed a conviction for possession of marijuana where the defendant was the joint occupant of an automobile wherein small amounts of marijuana were found in plain view in various locations in the automobile, some of which were in close proximity to the defendant.

Summary of this case from Harvey v. State
Case details for

D.J. v. State

Case Details

Full title:IN THE INTEREST OF D.J., A CHILD, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Mar 12, 1976

Citations

330 So. 2d 35 (Fla. Dist. Ct. App. 1976)

Citing Cases

Harvey v. State

We agree with appellant and the state's proof was insufficient. In D.J. v. State, 330 So.2d 35 (Fla. 4th DCA…

Fedor v. State

In finding insufficient evidence to convict a defendant, who was one of eight occupants, and was a resident,…