IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D EDUARDO GIRALT, Petitioner, -vs- STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D EDUARDO GIRALT, Petitioner, -vs- STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF RESPONDENT ON JURISDICTION CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida RICHARD L. POLIN Bureau Chief, Criminal Appeals CONSUELO MAINGOT Assistant Attorney General Florida Bar No Office of the Attorney General The Republic Tower 110 SE 6 th Street, 9 th Floor Fort Lauderdale, FL (954) Fax:

2 TABLE OF CONTENTS PAGES TABLE OF CITATIONS...ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 QUESTION PRESENTED... 3 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 5 THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE THIS COURT S DECISIONS IN SMITH v. STATE, 279 So. 2d 27 (Fla. 1973) AND BROWN v. STATE, 428 So. 2d 250 (Fla. 1983) ON THE SAME QUESTION OF LAW. CONCLUSION... 9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPE AND STYLE...10 i

3 TABLE OF CITATIONS STATE CASES Brown v. State, 4288 So. 2d 250 (Fla. 3d DCA 2001),... 2,3,5,7,8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4,5,8 Smith v. State, 279 So. 2d 27 (Fla. 1973)... 2,3,5,6,8 State v. Kalogeropolous, 758 So. 2d 110 (Fla. 2000)... 2 State v. Ortiz, 766 So. 2d 1137 (Fla. 3d DCA 2000)... 2 OTHER AUTHORITIES Article V, Section 3(b)(3), Fla. Const Rule 9.030(a) (2)(A)(iv), Fla.R.App.P... 5 ii

4 INTRODUCTION The Petitioner, EDUARDO GIRALT, was the Defendant in the trial court and the Appellant in the Third District Court of Appeal. THE STATE OF FLORIDA, was the prosecution in the trial court and Appellee in the Third District Court of Appeal. The parties shall be referred to as Petitioner and Respondent in this brief. The symbol "App." followed by a letter, colon and page number refers to the appendix to this brief, which contains a conformed copy of the slip opinion of the Third District Court of Appeals in the instant cause. STATEMENT OF THE CASE AND FACTS The Petitioner, EDUARDO GIRALT, is challenging the Third District Court s reversal of the trial court s order granting his motion to dismiss the Information. (App. A:1). Petitioner was charged with trafficking in cannabis and the trial court granted his sworn motion to dismiss. (App. A:1). The Petitioner argued that the State s case of constructive possession was based solely on evidence that the Petitioner was the joint owner of the home, and the undisputed facts did not set forth a prima facie case that he was in actual or constructive possession of the marijuana. (App. A:2). The State filed a Traverse arguing the undisputed facts, including the Petitioner s admission that he and his wife were the legal owners of the house as well as other evidence, which established that the Petitioner knew the 1

5 illicit nature of the marijuana, thus constructive possession, an issue to be decided at trial. (App. A:2-3). The Third District Court of Appeal reversed the lower court s dismissal of the charges, finding: (App. A:3)....In assessing a motion to dismiss, all facts and inferences are to be reviewed in the light most favorable to the State. See State v. Kalogeropolous, 758 So. 2d 110 (Fla. 2000); State v. Ortiz, 766 So. 2d 1137 (Fla. 3d DCA 2000). Even in cases involving purely circumstantial evidence, the issue of whether such circumstantial evidence excludes all reasonable hypotheses of innocence may only be decided at trial, after all of the evidence has been presented. State v. Ortiz, 766 So. 2d at Petitioner filed his notice to invoke the jurisdiction of this Court to review the Third District Court s decision in 3D citing conflict with the this Court s decisions in Smith v. State, 279 So. 2d 27 (Fla. 1973) and Brown v. State, 428 So. 2d 250 (Fla. 1983) on the question of constructive possession. 2

6 QUESTION PRESENTED THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE THIS COURT S DECISIONS IN SMITH v. STATE, 279 So. 2d 27 (Fla. 1973) AND BROWN v. STATE, 428 So. 2d 250 (Fla. 1983) ON THE SAME QUESTION OF LAW. SUMMARY OF THE ARGUMENT The Third District Court of Appeal s opinion in this case that a motion to dismiss alleging undisputed facts must be denied where a reasonable jury construing the material facts in the light most favorable to the State could find that the defendant had constructive possession of the cannabis, in that he occupied the home, and had knowledge and control over the marijuana and hydroponic lab is not in express and direct conflict with this Court s decision in Smith v. State, 279 So. 2d 27 (Fla. 1973). The contraband in Smith v. State was found in the wife s bedroom drawer. This Court held joint occupancy by defendant and his wife was insufficient to infer that defendant as head of the household, knew of the presence of the illegal drugs for a finding of constructive possession, and the motion for judgment of acquittal should have been granted. Nor does the Third s opinion conflict with this Court s decision in Brown v. State, 428 So. 2d 250 (Fla. 1983), holding that joint occupancy, with or without ownership of premises in 3

7 which contraband is discovered in plain view in the presence of the owner or occupant, is sufficient to support conviction for constructive possession. Here, the Third District Court found that there were sufficient facts and circumstantial evidence that the hydroponic laboratory and marijuana plants were found in one of the bedrooms. The Third District Court found that since Petitioner had been in the house that same day along with other evidence of his occupancy and ownership of the house, the issue of whether or not he was in constructive possession of the cannabis in his house should go to the jury. In Smith this Court opined that joint occupancy alone was not sufficient to show constructive possession where the illicit drugs were found in a drawer belonging to the defendant s wife. In Brown this Court held that joint occupancy where the defendant was present during the search which revealed contraband in plain view in the living room, kitchen, family room, garage and one bedroom, was sufficient to infer constructive possession on the part of the defendant. Each case differs from the other on the facts, and as a result the finding as to the legal issue of constructive possession must be determined by a finding on the facts. That being so, there is no express and direct conflict on this question of law. Therefore, on the authority of Reaves v. 4

8 State, 485 So. 2d 829, 830 (Fla. 1986) this Honorable Court should deny discretionary jurisdiction. ARGUMENT THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE THIS COURT S DECISIONS IN SMITH v. STATE, 279 So. 2d 27 (Fla. 1973) AND BROWN v. STATE, 428 So. 2d 250 (Fla. 1983) ON THE SAME QUESTION OF LAW. Discretionary jurisdiction of this Honorable Court may be exercised to review, among other matters, decisions of district courts of appeal which expressly and directly conflict with a decision of this Court or of another district court of appeal on the same question of law. Article V, Section 3(b)(3), Fla. Const.; Fla.R.App.P (a)(2)(A)(iv). Decisions are considered to be in express and direct conflict when the conflict appears within the four corners of the majority decisions. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Neither the record itself nor the dissenting opinion may be used to establish jurisdiction. Id. Respondent respectfully requests this Honorable Court to decline to accept jurisdiction in this case, since Petitioner presents no legitimate basis for the invocation of this Court s discretionary jurisdiction. The Third District Court of Appeal s opinion in this case holding that a motion to dismiss alleging undisputed facts 5

9 must be denied where a reasonable jury construing the material facts in the light most favorable to the State could find that the defendant had constructive possession in that he occupied the home, and had knowledge and control over the marijuana and hydroponic lab is not in express and direct conflict with this Court s decision in Smith v. State, 279 So. 2d 27, 28 (Fla. 1973). In Smith, this Court held the motion for judgment of acquittal should have been granted where joint occupancy of premises by the defendant and his wife, and the investigating officer s finding of the illegal drugs along with the wife s costume jewelry in a dresser drawer in a bedroom jointly occupied by both, was insufficient to infer defendant, as head of the household, knew of the contraband, thus no constructive possession. Further, this Court opined that absent evidence to connect the defendant to the presence of the illegal drugs by essential knowledge on his part, judgment of acquittal was appropriate. Id. at 28. The difference in the instant case and Smith is that the contraband was not in plain view and could have been hidden in the jewelry drawer by anyone including the wife. Thus, it is reasonable to believe that just because the husband occupied the premises and also the bedroom with his wife, there was no independent evidence he knew her jewelry drawer also contained 6

10 illicit drugs, and therefore had constructive possession of the contraband. However, here, the Third District Court determined that: Here, the defendant admitted in his motion to dismiss that he and his wife were the legal owners of the house. Men s and women s clothes were found in the residence along with bills and documents solely in the defendant s name. The hydroponic laboratory and marijuana were found in one of the bedrooms and it is undisputed that the defendant knew the illicit nature of the marijuana and had been in the home earlier that same day. (App. A:3). A full-blown hydroponics laboratory which occupied one whole bedroom in the residence would hardly go unnoticed by the owner of the house. It could not be so easily concealed as in Smith. Also, given the other indicia of knowledge, Petitioner s presence at the house earlier in the day and the documents in his name addressed to the residence, the trial court improperly granted the motion to dismiss. The State filed a sufficient traverse and the Third District Court properly reversed for the trial court to send the issue of constructive possession to jury. The legal determination of constructive possession is based on the factual issues which differ in these cases, so that no conflict as to the legal question exists. Nor does the Third s opinion conflict with this Court s decision in Brown v. State, 428 So. 2d 250 (Fla. 1983), holding 7

11 that joint occupancy, with or without ownership of premises in which contraband is discovered in plain view in the presence of the owner or occupant, is sufficient to support conviction for constructive possession. In Brown, this Court determined that knowledge of the contraband s presence and the ability to control it (constructive possession) will not be inferred from the ownership but must be established by independent proof. Id. at 252. In Brown joint occupancy where the defendant was present during the search which revealed contraband in plain view in the living room, kitchen, family room, garage and one bedroom, was sufficient to infer constructive possession on the part of the defendant. Id. at In this case, unlike Smith and Brown where the issue of constructive possession were both sent to jury, the trial court erred in dismissing the case and the Third District Court correctly reversed and remanded the case for the trial court to send the issue of constructive possession to jury. This case differs from Brown on another point. The Petitioner would find conflict in that he was not present, as Brown was, during the search which disclosed the cannabis. Therefore, he argues constructive possession cannot be imputed to him. He is mistaken. There were other indicia of constructive possession upon which the issue could be sent to jury. In Brown the facts 8

12 created a jury question and insofar as the same is true here, there exists no conflict. That being so, there is no express and direct conflict on this question of law. Therefore, on the authority of Reaves v. State, 485 So. 2d at 830, this Honorable Court should deny discretionary jurisdiction. 9

13 CONCLUSION WHEREFORE, the State respectfully requests that the petition for discretionary review be denied as there is no express and direct conflict. Respectfully Submitted, CHARLES J. CRIST, JR. Attorney General RICHARD L. POLIN Bureau Chief, Criminal Appeals CONSUELO MAINGOT Assistant Attorney General Florida Bar Number Office of the Attorney General Criminal Appeals Division 110 SE 6th Street - 9th Floor Fort Lauderdale, FL (954) Fax:

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing BRIEF OF RESPONDENT was mailed to ARTHUR JOEL BERGER, Attorney for the Petitioner, SW 105 th Terrace, Miami, Florida on this day of June, CONSUELO MAINGOT Assistant Attorney General CERTIFICATE OF TYPE SIZE AND STYLE Counsel for the Respondent, the State of Florida, hereby certifies that 12 point Courier New is used in this brief. 11

15 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D EDUARDO GIRALT, Petitioner, -vs- STATE OF FLORIDA, Respondent. APPENDIX TO BRIEF OF RESPONDENT ON JURISDICTION INDEX State v. Giralt, No. 3D (Fla. 3d DCA April 14, 2004)...App. A

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing APPENDIX TO BRIEF OF RESPONDENT was mailed to ARTHUR JOEL BERGER, Attorney for the Petitioner, SW 105 th Terrace, Miami, Florida on this day of June, CONSUELO MAINGOT Assistant Attorney General Florida Bar No Office of the Attorney General 110 SE 6 th Street - 9 th Floor Ft. Lauderdale, Florida (954) Fax: