Stemm v. State, BS-285
| Decision Date | 15 April 1988 |
| Docket Number | No. BS-285,BS-285 |
| Parties | 13 Fla. L. Weekly 951 Patrick E. STEMM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Before us is an appeal from judgment and sentence for possession of contraband in a county jail. Appellant argues that the trial court erred in failing to grant his motion for judgment of acquittal. We agree and reverse.
By information, appellant was charged with introducing or possessing contraband in a county jail and possession of less than twenty grams of marijuana. The cause proceeded to jury trial and at the close of the State's case, the court dismissed the possession of marijuana charge on the basis that it was a lesser included offense of the charge of introducing or possessing contraband. The court also denied appellant's motion for judgment of acquittal as to the latter charge. At the conclusion of all the evidence, appellant's motion for judgment of acquittal was reviewed and again denied and the cause went to the jury, which found appellant guilty as charged. Appellant was adjudicated guilty and sentenced to eighteen months in state prison.
At trial, the State presented the testimony of deputy sheriff Robert Dees who stated that on August 22, 1986, at 6:30 p.m., appellant checked in to the county jail to begin serving his weekend sentence. At that time, appellant had three packs of unopened Richland brand cigarettes in a paper sack, as well as one open pack in his shirt pocket from which two cigarettes were missing. Dees testified that he only conducted a light pat down of appellant and that he did not open the top of the opened cigarette box but just looked in to ascertain that there were two cigarettes missing. Appellant was thereafter placed in a cell with two other inmates.
According to Dees, at 10:30 p.m., he smelled burning marijuana. He followed the odor to the first floor to appellant's cell where he testified it was strongest. Dees left and returned with another officer. He approached appellant's cell and peered through the peephole and saw appellant standing at the window in his undershorts. Jason Knight was sitting on the top bunk and Neal Boston was lying on the bottom one. He entered the cell, asked if the jeans lying folded on the bed were appellant's, and received an affirmative answer. He reached inside the pants pocket and found an open pack of cigarettes which then contained only six cigarettes plus one marijuana cigarette. According to Dees, appellant denied knowing to whom the cigarettes belonged. Dees seized the pack and searched the paper bag which revealed the other three packs of cigarettes. The opened pack retained by Dees was sent to the lab along with the marijuana.
The lab chemist testified that the cigarette was indeed a marijuana cigarette but that it was not partially burned. A latent fingerprint examiner could find no fingerprints on the items.
The State rested and the defense presented the testimony of Jason Knight who stated that he had smelled marijuana in the jail prior to appellant's arrival. He maintained he never saw appellant smoke the marijuana.
John Simmons testified that he was in the cell next to appellant and that after appellant came into the jail, he passed Simmons a pack of cigarettes. Simmons took some out, and passed them back. He also testified that he had smelled marijuana earlier but did not smell an odor after appellant arrived. Both inmates maintained, contrary to Dees' testimony, that there was a fourth prisoner in appellant's cell that night.
Appellant testified that he checked into the jail to do his weekend sentence and brought in only three packages of unopened cigarettes. He denied having brought in the open pack of cigarettes maintaining that when he had arrived at the jail on a previous weekend he was told that he could not bring in an opened container. He also denied having on a shirt...
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Williams v. State, BS-312
...reasonable hypotheses of innocence that the State must exclude. Broughton v. State, 528 So.2d 1241 (Fla. 1st DCA 1988); Stemm v. State, 523 So.2d 760 (Fla. 1st DCA 1988). In the instant case, the specific rules governing proof of constructive possession control, 2 as held in Stemm, supra at......
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Dent v. State, 4-86-2594
... ... Therefore, the state's case was legally insufficient. See generally Stemm v ... State, 523 So.2d 760 (Fla. 1st DCA 1988); Schaufele v. State, 269 So.2d 400 (Fla. 4th DCA 1972) ... Although I believe ... ...
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Broughton v. State, BO-201
...FOR REHEARING BOOTH, Judge. Pursuant to appellant's motion for rehearing and notice of supplemental authority citing Stemm v. State, 523 So.2d 760 (Fla. 1st DCA 1988), our original opinion is withdrawn and the following is This cause is before us on appeal from an order convicting appellant......