Mosley v. State

OWEN, Chief Judge.

Appellant was convicted for possession of certain narcotic drugs and paraphernalia, which conviction necessarily had to be based upon constructive possession since there was no evidence of actual physical possession. The drugs and paraphernalia were seized pursuant to search warrant executed on an apartment leased to and occupied by appellant’s paramour. Although appellant also occupied the apartment sporadically, it was not in his exclusive possession and the State failed to present evidence to form a reasonable basis from which the inference could be drawn that appellant knew of the presence of the drugs and paraphernalia with the ability to maintain control over the same.

We conclude on the authority of Smith v. State, Fla.1973, 279 So.2d 27, Medlin v. State, Fla.App.1973, 279 So.2d 41, Griffin v. State, Fla.App.1973, 276 So.2d 191, Smith v. State, Fla.App.1973, 276 So.2d 91, and Frank v. State, Fla.App.1967, 199 So.2d 117, that the evidence was insufficient to sustain the conviction and that the judgment and sentence should be and the same are severally reversed and appellant ordered discharged.

MAGER, J. and MORROW, RUSSELL O., Associate Judge, concur.