Opinion
No. 87-1224.
February 10, 1988.
Appeal from the Circuit Court, Indian River County, Charles E. Smith, J.
Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellee.
The defendant was convicted of trafficking in cocaine. A review of the record discloses that the evidence was insufficient to state a prima facie case of constructive possession.
During a search of property located in a residential subdivision, the police discovered cocaine in a can under a bush. The property was occupied by the defendant and another man. The contraband was discovered several feet beyond the property line. A considerable amount of trash was scattered around the area, some of which was admittedly the defendant's, but much of which had been discarded by others. A scale, which did not contain any trace of cocaine, was found five feet away. Defendant's fingerprint was found on the scale. The defendant denied prior knowledge of either the scale or drugs, although he "might" have touched the scale while going through "stuff" back there. The defendant also acknowledged to the police, several weeks later, that certain persons had been angrily looking for him because their drugs were gone and he had not been arrested. The state speculates that this indicated that the defendant had been selling the cocaine for them. There was no direct evidence linking the defendant to the cocaine.
We reverse the judgment and sentence, and remand with direction that the defendant be discharged. See, generally, Brown v. State, 428 So.2d 250 (Fla. 1983), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Richardson v. State, 488 So.2d 661 (Fla. 4th DCA 1986); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981); Gaynus v. State, 380 So.2d 1174 (Fla. 4th DCA 1980); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976); Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975); Williams v. State, 489 So.2d 1198 (Fla. 1st DCA), rev. denied, 500 So.2d 546 (Fla. 1986); Cortez v. State, 488 So.2d 163 (Fla. 1st DCA 1986); Chappell v. State, 457 So.2d 1133 (Fla. 1st DCA 1984); Muwwakil v. State, 435 So.2d 304 (Fla. 3d DCA 1983), rev. denied, 444 So.2d 417 (Fla. 1984); Hall v. State, 382 So.2d 742 (Fla. 2d DCA 1980); Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977); Williams v. State, 308 So.2d 595 (Fla. 1st DCA), cert. denied, 321 So.2d 555 (Fla. 1975).
DOWNEY and LETTS, JJ., concur.