Midgette v. State, 5D14–1545.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ORFINGER, J.
• Citation: 152 So.3d 767
• Parties: Richard MIDGETTE, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 5D14–1545.,5D14–1545.
• Decision Date: 05 December 2014

152 So.3d 767

Richard MIDGETTE, Appellant
v.
STATE of Florida, Appellee.

No. 5D14–1545.

District Court of Appeal of Florida, Fifth District.

Dec. 5, 2014.

152 So.3d 768

Richard Midgette, Carrabelle, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

Opinion

ORFINGER, J.

Richard Midgette appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court's order denying relief on Grounds One, Two, Three, and Four without discussion. However, we reverse and remand the claims designated “Ground Two Sub–Claim” and Ground Five for further proceedings.

Following a trial, Midgette was convicted of burglary of a dwelling and grand theft. Midgette asserts that his counsel was ineffective for failing to object to a jury instruction establishing an inference that a burglary or theft conviction may be justified, in part, by an accused's unexplained possession of recently stolen property. This instruction is based on section 812.022(2), Florida Statutes (2006), which provides that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” See, e.g., Nshaka v. State, 92 So.3d 843, 847 (Fla. 4th DCA 2012). However, this inference only arises when the accused's possession of recently stolen goods is personal and exclusive, or from the accused's distinct and conscious assertion of possession. Ridley v. State, 407 So.2d 1000, 1001 (Fla. 5th DCA 1981). If there is joint possession, the suspects must be acting in concert. See Walker v. State, 896 So.2d 712, 720 n. 5 (Fla.2005) (explaining that joint possession of two or more persons acting in concert is “exclusive” as to any of them). Merely sharing the location where stolen property was found with others, does not support the inference instruction. See Walton v. State, 404 So.2d 776, 777 (Fla. 1st DCA 1981) (holding that joint possession

152 So.3d 769

of duplex and shed where stolen property found was insufficient). Likewise, “[m]ere knowledge that an offense is being committed and mere presence at the scene of the crime are insufficient to establish participation in the offense.” Garcia v. State, 899 So.2d 447, 450 (Fla. 4th DCA 2005) (holding inference not permitted where defendant was one of several people in van containing stolen property, but there was no proof that he exercised dominion or control over property). Similarly, mere presence nearby while someone else possesses stolen property is also not sufficient to create the inference of guilt. Waldron v....