Colston v. State

SHIVERS, Judge.

Defendant Colston appeals November 3, 1986, judgment of guilt for possession of contraband in a county detention facility contrary to section 951.22, Florida Statutes. He contends the trial court erred in failing to instruct the jury on misdemeanor possession of cannabis as a lesser included offense. We reverse.

At the time of the judgment against Col-ston, our court had held in Wilcott v. State, 472 So.2d 1389 (Fla. 1st DCA 1985) that misdemeanor possession of marijuana is not a lesser included offense of possession of contraband in a state prison. On May 21, 1987, the Florida Supreme Court quashed this decision and held that the defendant, who was charged with possession of contraband in a state penal institution, was entitled to a jury instruction on simple possession of less than 20 grams of cannabis, where the evidence showed that the amount involved was less than 20 grams. Since misdemeanor possession was the next lower lesser included offense, the failure to instruct was held to be reversible error. Because of the similarity between sections 951.22 (possession of contraband in a county facility) and 944.47 (possession of contraband in a state correctional institution), and because the evidence in the instant case also indicates that less than 20 grams of cannabis was involved, the same result is warranted here.

REVERSED and REMANDED for a new trial.

NIMMONS and BARFIELD, JJ., concur.