Opinion
Case No. 4D02-1445.
Opinion filed August 25, 2004.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County, Burton C. Conner, Judge, L.T. Case No. 97-506 CFA.
Lester Johnson, Crestview, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
Lester Johnson appeals the final order denying his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.
Following a jury trial, Johnson was found guilty of possession of a firearm by a convicted felon. In the twenty-fifth ground of his motion, he argued that his trial counsel was ineffective in failing to seek a jury instruction on scienter when his case involved joint occupancy of the residence in which the firearms in question were located. He argued that he was prejudiced because he was not aware of the existence of any firearms.
Knowledge of possession is an element of the crime of which Johnson was convicted, and the jury should have been instructed that it had to find he had knowledge of any firearm it found he possessed and an ability to exercise control over it. See Creamer v. State, 605 So.2d 541, 542 (Fla. 1st DCA 1992); White v. State, 539 So.2d 577, 578-79 (Fla. 5th DCA 1989). That element has been included in the standard jury instruction since 1992. See Creamer, 605 So.2d at 542. If the jury was not so instructed, counsel should have objected.
The trial court did not request a state response with respect to this ground, and this ground was not one of those heard at the evidentiary hearing. In denying the motion, the trial court did not attach any portions of the record to refute this claim, or otherwise explain its denial. See Fla. R. Crim. P. 3.850(d) (requiring the trial court, when denial is not predicated on the facial legal insufficiency of a ground, to attach a copy of such files and records that conclusively show the movant is not entitled to relief, or to determine whether an evidentiary hearing is required).
Accordingly, the order is reversed in part for further proceedings with respect to the twenty-fifth ground. In all other respects, we affirm the trial court's denial of the motion.
Affirmed in part, reversed in part, and remanded.
WARNER, STEVENSON and TAYLOR, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.