Forget v. State, 2D00-629.
| Decision Date | 09 February 2001 |
| Docket Number | No. 2D00-629.,2D00-629. |
| Citation | 782 So.2d 410 |
| Parties | Alain L. FORGET, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Valentine, Lakeland, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
Forget appeals the trial court's denial of his motion to suppress and his judgment and sentence for possession of cocaine and drug paraphernalia. Forget raises two issues on appeal, the first of which requires this court to reverse for a new trial. The second issue is without merit.
The State charged Forget by information with possession of cocaine, a third-degree felony (count one) and possession of drug paraphernalia, a third-degree misdemeanor (count two). Prior to trial, Forget moved to suppress the cocaine and pipe which formed the basis for the possession charges. The State presented evidence that a police officer responded to a resident's complaint regarding a trespasser at 2:18 a.m. on December 24, 1998. Upon the officer's arrival, he and the complainant approached a shed in the complainant's backyard and observed Forget sitting on a mattress. When the officer asked Forget whether he possessed any weapons, Forget responded in the affirmative. After receiving permission to search Forget for the weapons, the officer found a pocketknife, a piece of rock cocaine, and a narcotics pipe. The officer placed Forget under arrest and asked him whether there were any more narcotics in the shed. Forget directed the officer to three pieces of rock cocaine on a weight disk nearby. The court denied Forget's motion to suppress finding that the search was valid either pursuant to Forget's consent or as a valid search for weapons. Forget thereafter proceeded to trial.
In his opening statement to the jury, trial counsel argued that Forget was not guilty as to possession of cocaine. As to possession of drug paraphernalia, trial counsel conceded that Forget was guilty and suggested that the verdict should so reflect. The State presented essentially the same testimony which was adduced at the hearing on the motion to suppress. In addition, the evidence established that the police officer who seized the cocaine packaged the rock found on Forget's person together with the three rocks found on the weight disk. However, the laboratory analyst who tested the cocaine testified that the evidence bag contained only three rocks of cocaine and some powder.
After the State rested, the court invited Forget to move for a judgment of acquittal on the possession charge, based on the fact that "the jury is entitled to conclude that the cocaine in the pocket was his and the cocaine on the weight disk are [sic] not." The prosecutor responded that the conviction for possession of cocaine could be based on the residue in the pipe. Defense counsel thereafter suggested that the court instruct the jury that they could only base the possession of cocaine verdict on the cocaine residue. The court responded: "Isn't that tantamount to directing a verdict of guilty in light of your opening statement?" Defense counsel replied that it was not, and the court denied the motion for judgment of acquittal.
During closing arguments, the prosecutor argued that the discrepancy regarding the evidence bag did not matter because the residue on the pipe was cocaine, and the law allows for a presumption of knowledge since the pipe was in Forget's pocket. Defense counsel argued that although Forget possessed the pipe, he was not guilty of possession of the cocaine residue in the pipe because there was no proof that Forget knew the discolored material in the pipe was cocaine. However, defense counsel never requested the trial court to read the jury instruction that would have required the State to establish Forget's knowledge of the presence of cocaine residue in the pipe.1 Instead, the judge gave the following standard instruction regarding exclusive possession: "If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed."
During deliberations, the jury posed the following questions:
The court gave the following response without objection:
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...met in cases: (1) when counsel failed to request a jury instruction regarding the mens rea element of the crime, Forget v. State, 782 So. 2d 410, 413 (Fla. 2d DCA 2001), or (2) when counsel failed to file a motion to dismiss and an appellate decision published four months earlier mandated d......
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...Face of the Record"[C]laims of ineffective assistance of counsel are not normally cognizable on direct appeal...." Forget v. State , 782 So. 2d 410, 413 (Fla. 2d DCA 2001). "They may be reviewable, however, on direct appeal where ‘the ineffectiveness is apparent from the face of the record ......
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...probability that the outcome of the trial would have been different but for the unsatisfactory assistance." Forget v. State, 782 So. 2d 410, 413 (Fla. 2d DCA 2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Under Strickland, we first deter......
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