V.B.L. v. State, 80-2355

• Decision Date: 26 January 1982
• Docket Number: No. 80-2355,80-2355
• Citation: 408 So.2d 855
• Parties: V. B. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 855

408 So.2d 855

V. B. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 80-2355.

District Court of Appeal of Florida, Third District.

Jan. 26, 1982.

Appeal from Circuit Court; Dade County; Seymour Gelber, Judge.

Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.

Before BASKIN, DANIEL S. PEARSON, and JORGENSON, JJ.

PER CURIAM.

Affirmed.

BASKIN, Judge (dissenting).

The fact that a firearm was found under the driver's seat of an automobile driven by defendant V.B.L. is insufficient as a predicate for an adjudication of delinquency based upon carrying a concealed firearm. Defendant denied knowledge of the firearm's presence in the car he stated was owned by his father and in which another passenger rode. Any inference from the presence of spent cartridges that defendant knew the gun was in the car was challenged by his denial at the time of his arrest and presented a question of fact. Wilson v. State, 344 So.2d 1315 (Fla. 2d DCA 1977). The state was confronted with the burden of excluding every reasonable hypothesis of innocence.

The state failed to prove that defendant knew of the gun's presence and that he maintained control over it, elements necessary to establish constructive possession, Coley v. State, 393 So.2d 60 (Fla. 3d DCA 1981); Clark v. State, 359 So.2d 458 (Fla. 3d DCA 1978), cert. denied, 366 So.2d 880 (Fla.1979); Joiner v. State, 339 So.2d 296 (Fla. 1st DCA 1976), Russ v. State, 279 So.2d 92 (Fla. 3d DCA 1973), and to overcome its burden of proof that no reasonable hypothesis of innocence remained.

For these reasons, I would reverse defendant's conviction.