DONDRICK CHERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We affirm Cherry’s conviction for.trafficking in cocaine over 28 grams but reverse his conviction for possession of marijuana with intent to deliver. The trial court denied Cherry’s request for a special jury instruction that an element of the crime is knowledge by the defendant that the substance possessed was marijuana. This was an error. See Chicone v. State, 684 So. 2d 736, 746 (Fla.1996). We also find that this error was not harmless. See Goodwin v. State, 751 So. 2d 537 (Fla.2000) (harmless error test places the burden on state as beneficiary of error to prove beyond reasonable doubt that error did not contribute to verdict, that there is no reasonable possibility that error contributed to conviction). Contrary to police testimony, Cherry testified that he was never in the kitchen where the marijuana was located. The State presented no evidence showing Cherry knew the substance was marijuana. We cannot say beyond a reasonable doubt that the jury’s verdict was not affected. REVERSED AND REMANDED FOR A NEW TRIAL.
FARMER, KLEIN and TAYLOR, JJ., concur.
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Dondrick Cherry v. State, 835 So. 2d 1205 (Fla. 4th DCA 2003)…ncur. . At trial, Andre Wilson testified that his real name was Derick Spurgeon. . Appellant was also convicted of one count of possession of marijuana with intent to deliver, but this conviction was reversed on direct appeal. See Cherry v. State, 775 So. 2d 403 (Fla. 4th DCA 2000), and subsequently that charge was nolle prossed.…
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Wilson v. State, 835 So. 2d 1215 (Fla. 4th DCA 2003)…equest, which the trial court denied. Petitioner’s brief failed to challenge the trial court’s denial of his request for this instruction and his conviction and sentence were affirmed by this court. In co-defendant Cherry’s appeal, Cherry v. State, 775 So. 2d 403 (Fla. 4th DCA 2000), however, we affirmed Cherry’s conviction for trafficking, but reversed his conviction for possession of marijuana with intent to deliver based on the failure to include the requested instruction. The trial record reflects that…
Authorities Cited
- Goodwin v. State, 751 So. 2d 537 (Fla. 1999)
- Chicone v. State, 684 So. 2d 736 (Fla. 1996)