Opinion
No. 2D21-1693
04-29-2022
Kevin ZETROUER, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Dane K. Chase, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee; Michael S. Roscoe, Assistant Attorney General, Tampa; and Cynthia Richards, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
Howard L. Dimmig, II, Public Defender, and Dane K. Chase, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee; Michael S. Roscoe, Assistant Attorney General, Tampa; and Cynthia Richards, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
MORRIS, Chief Judge.
Kevin Zetrouer appeals his convictions, after a jury trial, for trafficking in oxycodone, possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Zetrouer raises two issues on appeal, only one of which warrants a reversal.
Zetrouer argues that he is entitled to a judgment of acquittal on the possession of marijuana count because the State did not introduce evidence of the marijuana that he allegedly possessed or evidence that the marijuana was legitimately unavailable. The State correctly concedes error on this issue. See G.E.G. v. State , 417 So. 2d 975, 977 (Fla. 1982) ("[W]hen a defendant is charged with possession of a controlled substance, that substance, if available, must be introduced into evidence ...."); see also D.R.S. v. State , 912 So. 2d 1280, 1281 (Fla. 2d DCA 2005) ; Williams v. State , 870 So. 2d 71, 71 (Fla. 2d DCA 2003). Accordingly, we reverse Zetrouer's conviction for possession of marijuana and remand for a new sentencing hearing using a corrected scoresheet. See Fernandez v. State , 199 So. 3d 500, 502 (Fla. 2d DCA 2016) ("In general, when the vacation of a conviction would result in changes to the defendant's scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet."). We affirm Zetrouer's other convictions.
Affirmed in part; reversed in part; remanded.
SLEET and ATKINSON, JJ., Concur.