Rither v. State

39 So. 3d 534, 2010 Fla. App. LEXIS 10134, 2010 WL 2754435

Opinion

PER CURIAM.

ON MOTION FOR REHEARING AND/OR CLARIFICATION

We grant the State’s Motion for Rehearing and/or Clarification, withdraw our previous opinion, and substitute the following opinion in its place.

Appellant seeks review of his conviction and sentence for trafficking in cocaine. He alleges that the trial court erred in denying his motion for judgment of acquittal in light of the State’s failure to prove that he was in constructive possession of the drugs. In order to prove constructive possession, the State was required to prove that Appellant knew of the presence of the contraband and was able to exercise dominion and control over it. Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009) (citing § 893.101(1)-(2), Fla. Stat. (2006)); Links v. State, 927 So.2d 241, 243 (Fla. 2d DCA 2006) (citing Diaz v. State, 884 So.2d 387 (Fla. 2d DCA 2004)). We agree that the State failed to meet its burden of proof in regards to Appellant’s knowledge of the presence of the cocaine. Accordingly, the trial court erred in denying Appellant’s motion for judgment of acquittal. The conviction is REVERSED and the case is REMANDED to the trial court with directions to discharge Appellant.

DAVIS, CLARK and WETHERELL, JJ., concur.