Kiely v. State

OPINION OF THE COURT M. WILLIAM GRAYBILL, Circuit Judge. Appellant, seated behind the wheel of a parked pickup truck at nighttime, was charged with possession of marijuana found to be in the physical possession of a front seat passenger who admitted ownership of the contraband. The State presented evidence from which it could reasonably be inferred the Appellant knew the passenger was in possession of marijuana but presented no evidence whatsoever that Appellant had any [117] ownership or interest in the contraband nor any dominion, control or ability to control the same. Although never brought to the attention of the Trial Court, the case on appeal is controlled by Spiegel v State, 269 So.2d 684 (Fla. 4th DCA 1972) wherein at Page 696 it was held, “that presence of a quantity of marijuana in the exclusive possession of a passenger in an automobile, in which marijuana the driver of the automobile has not been shown to have any ownership or interest, nor any dominion or control over the same, does not make the driver guilty of ‘possession or control’ of such contraband.” Accord Pena v State, 465 So.2d 1386 (Fla. 2d DCA 1985), Daudt v State, 368 So.2d 52 (Fla. 2d DCA 1979), Nogar v State, 277 So.2d 257 (Fla. 1973). REVERSED AND REMANDED with directions to set aside the conviction and sentence and enter a directed verdict of acquittal. DATED this 16th day of August, 1990.