ERROLL GARY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Erroll Gary was convicted of cocaine delivery and sentenced to thirty years as a habitual felony offender. The Fourth District reversed and remanded because the trial court failed to give a jury instruction on guilty knowledge, an essential element of the delivery crime, which constitutes reversible error regardless of the defendant's trial strategy.
The failure to give a requested Chicone instruction on guilty knowledge cannot be harmless error. Because guilty knowledge is an essential element of the delivery crime, the jury must be instructed on it regardless of the defense strategy employed, and the instruction must be given even when the defendant simply requires the State to prove its case.
[1] Guilty knowledge of the illicit nature of a substance is an essential element of the crime of delivery of a controlled substance.
[2] A defendant is entitled to a jury instruction on guilty knowledge when charged with delivery of a controlled substance.
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Join FLexlaw to unlock all legal intelligence“guilty knowledge is an essential element of the crime of possession and that the State is required to prove that the defendant knew of the illicit nature of the substance possessed”
Establishes that guilty knowledge is a required element that must be proven beyond a reasonable doubt
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Join FLexlaw to unlock all legal intelligenceGary was charged with and convicted of delivery of cocaine. At trial, Gary's defense was not that he lacked knowledge of the illicit nature of the sub…
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STEVENSON, J.
The appellant, Erroll D. Gary, was convicted of delivery of cocaine and sentenced to thirty years incarceration as an habitual felony offender. On appeal, Gary raises a number of issues. We find merit in his contention that the trial court’s denial of a Chicone instruction entitles him to reversal of his conviction and a new trial. The remaining issues raised are moot in light of the reversal.
In Chicone v. State, 684 So. 2d 736 (Fla.1996), the supreme court held that guilty knowledge is an essential element of the crime of possession and that the State is required to prove that the defendant knew of the illicit nature of the substance possessed. While Gary was charged with delivery, not possession, this distinction is not significant as this court has held that “guilty knowledge” is also an element of the crime of delivery. See Ryals v. State, 716 So. 2d 313 (Fla. 4th DCA), review denied, 727 So. 2d 910 (Fla.1998), receded from on other grounds in Hampton v. State, 796 So. 2d 1260, 1260 n. 1 (Fla. 4th DCA 2001); see also Jenkins v. State, 694 So. 2d 78, 80 (Fla. 1st DCA 1997). Clearly, then, Gary was entitled to the requested Chicone instruction.
Until just recently, however, the more unsettled question was whether the failure to give a Chicone instruction could be harmless error under circumstances where, as here, the defendant’s defense was not that he did not know of the illicit nature of the substance but, rather, that he never had the drugs in the first place. See Scott v. State, 722 So. 2d 256 (Fla. 5th DCA 1998); see also Leaks v. State, 748 So. 2d 285 (Fla. 2d DCA 1998). The supreme court has recently answered this question, certified by the Fifth District in Scott, and held that the failure to give such a requested instruction cannot be harmless error. The State has the burden of proof in any prosecution to demonstrate each element of the offense beyond a reasonable doubt.... Since the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.
... Moreover, the requirement that an instruction [that the defendant must have knowledge of the illicit nature of the substance] must be given does not depend on the defense espoused. Because knowledge of the illicit nature is an element of the crime and the jury must be instructed on each element of the crime, an instruction must be given even when the defendant simply requires the State to prove its case and offers nothing by way of an affirmative defense.
Scott v. State, 808 So. 2d 166, 170-71 (Fla. 2002) (citations omitted).
In light of the supreme court’s opinion in Scott, we reverse Gary’s conviction and remand for a new trial.
REVERSED and REMANDED.
STONE and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blunt v. State, 831 So. 2d 770 (Fla. 4th DCA 2002)…bstance. In Scott, the supreme court concluded that a defendant was entitled to an instruction on the element of guilty knowledge in a possession case and that failure to give the requested instruction was not harmless error. See also Gary v. State, 806 So. 2d 582 (Fla. 4th DCA 2002). Although, here, the instruction was not requested, it is nevertheless error because, as Chicone and Scott explained, guilty knowledge is an element of the offense charged and was material to the jury’s finding of guilt. See Tho…
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Izel Jackson v. State, 832 So. 2d 773 (Fla. 4th DCA 2002)…te acknowledges the Florida Supreme Court’s decision in Scott but seeks to distinguish this case on the ground that appellant was charged with delivery not possession of cocaine. Our court has rejected this distinction in the case of Gary v. State, 806 So. 2d 582 (Fla. 4th DCA 2002). In Gary, the defendant was convicted of delivery of cocaine. This court reversed the defendant’s conviction because of the trial court’s denial of a requested Chicone jury instruction. We explained: In Chicone v. State, 684 So.…
Authorities Cited
- Chicone v. State, 684 So. 2d 736 (Fla. 1996)
- Scott v. State, 808 So. 2d 166 (Fla. 2002)
- Gaines v. State, 722 So. 2d 256 (Fla. 5th DCA 1998)
- Scott v. State, 722 So. 2d 256 (Fla. 5th DCA 1998)
- Jenkins v. State, 694 So. 2d 78 (Fla. 1st DCA 1997)
- Pac. Fla. Holdings, Inc. v. Palm Beach Cnty., 716 So. 2d 313 (Fla. 4th DCA 1998)
- Ryals v. State, 716 So. 2d 313 (Fla. 4th DCA 1998)
- Blanch v. State, 796 So. 2d 1260 (Fla. 1st DCA 2001)
- Leaks v. State, 748 So. 2d 285 (Fla. 2d DCA 1998)