CHRISTOPHER DUCKETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WARNER, J.
When charging the jury in appellant’s trial for trafficking in LSD, the court omitted the word “knowingly” from the first element in the jury instruction, i.e., that appellant knowingly possessed LSD. At trial the defense submitted a correct trafficking instruction including the word “knowingly.” However, the trial court did not read the word to the jury, and counsel did not object. Nevertheless, as we held in Nash v. State, 951 So. 2d 1003 (Fla. 4th DCA 2007), the omission of the word “knowingly” in the trafficking instruction constitutes fundamental error where the element is disputed at trial. Here, appellant disputed his knowing possession of the drug. We reverse his conviction for trafficking in LSD and remand for a new trial consistent with this opinion. We affirm as to the remaining issue.
POLEN and TAYLOR, JJ., concur.
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Citator
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Barrientos v. State, 1 So. 3d 1209 (Fla. 2d DCA 2009)…ght, but it was sufficient to raise an issue concerning whether he had knowingly possessed the cocaine. For this reason, it was fundamental error for the trial court to omit the instruction on the element of knowing possession. See Duckett v. State, 985 So. 2d 674, 675 (Fla. 4th DCA 2008); Nash, 951 So. 2d at 1005-06. Furthermore, as the Fourth District did in Nash, we reject the State’s additional argument that reading other parts of the trafficking instruction was sufficient to avoid fundamental error. See…
Authorities Cited
- Leaita Nash v. State, 951 So. 2d 1003 (Fla. 4th DCA 2007)