25.7. Drug Abuse - Possession

NOTE TO JUDGE: In 2002, the Legislature passed legislation declaring that knowledge of the illicit nature of a controlled substance was not an element under the statute but rather was an affirmative defense. This legislation was in reaction to the Florida Supreme Courts holdings in Chicone v. State, 684 So. 2d 736 (Fla. 1996) and Scott v. State, 808 So. 2d 166 (Fla. 2002), which held that a knowledge element be added to possession instructions. The jury instruction committee has not yet issued a standard jury instruction reflecting the change created by the Legislature. The instant instruction has been changed, however, to eliminate knowledge of the illicit nature of the controlled substance as an element. However, if the defendant committed the crime prior to May 13, 2002, (the effective date of the legislation), the knowledge element must be included as a fourth element. See Thomas v. State, 844 So. 2d 723 (Fla. 5th DCA 2003). 25.7 DRUG ABUSE - POSSESSION 893.13(6)(a), Fla. Stat. Certain drugs and chemical substances are by law known as "controlled substances." [Specific substance alleged] is a controlled substance. To prove the crime of [crime charged], the State must prove the following three elements beyond a reasonable doubt: 1. [Name of defendant] possessed a certain substance. 2. The substance was [specific substance alleged]. 3. [Name of defendant] had knowledge of the presence of the substance. To "possess" means to have personal charge of or exercise the right of ownership, management or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as towithin ready reach an be d is under the control of the person. <<<<<<<<<********>>>>>>>>>>>>> 2NOTE TO JUDGE: Give any of the next three paragraphs if applicable. Mere proximity to a thing is not sufient to establish control over that thing ficwhen the thing is not in a place over which the person has control. Constructive possession mis in a place over which the persoeans the thing n has control, or in which the person has concealed it. If a thing is in a place over which the person does not have control, in order to establish constructive possession the State mu prove the persons (1) control over the stthing, (2) knowledge that the thing was within the persons presence, and (3) knowledge of the illicit nature of the thing. Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. NOTES TO JUDGE : 1. If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So. 2d 394 (Fla. 1973). Note F.S. 893.13(1)(g) if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis.