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Garcia v. State4/21/2005
the application of that principle to this case was proper.
However, the point of divergence between the majority and myself, as well as between district court decisions addressing claims similar to Garcia's, stems from the reasoning in Delva that a theory of defense contesting knowledge of the presence of a substance does not also place into dispute knowledge of the illicit nature of that substance. In the instant case, citing Delva, the Second District found no fundamental error where Garcia's theory of defense was that he had no knowledge of the existence of the cocaine found in his vehicle. Similarly, the Fourth District implicitly agreed with Delva's reasoning when in Lee v. State it found no fundamental error where a defendant's defense had been that he had no knowledge of the package of contraband found in his vehicle. 835 So. 2d at 1177. See also Davis, 839 So. 2d at 735 (rejecting application of Scott in favor of application of Delva). But in Goodman v. State, 839 So. 2d 902, 903 (Fla. 1st DCA 2003), the First District, citing Scott, held that a defendant's denial of knowledge of the presence of cannabis "placed in dispute the essential element of knowledge of the illicit nature of the substance, as well as that of knowledge of the presence of the substance" and concluded, citing Reed, that " ccordingly, failure to instruct the jury on the element of knowledge of the illicit nature of the substance constituted fundamental error, entitling appellant to a new trial." This conflict between the decision below and Goodman is what the district court certified to this Court in the instant case.
As the court below correctly concluded, Scott and Delva do not conflict in their holdings because the former addresses preserved error and the latter addresses fundamental error. Nonetheless, there does appear to be a conflict between the holding in Delva and certain dicta in Scott. Compare Delva, 575 So. 2d at 645 (no fundamental error resulted because defendant disputed knowledge of presence of substance but not knowledge of illicit nature of substance), with Scott, 808 So. 2d at 171 ("Scott's argument that he did not possess the drugs and had no knowledge of the drug's presence in his locker encompasses the argument that he was unaware of the illicit nature of the substance."). To be clear, however, the certified conflict to be addressed by this Court is not the apparent conflict between the holding in Delva and dicta in Scott. Rather, the Second District has correctly certified conflict between the decision below and the Goodman decision on the issue of whether the reasoning of Scott or the reasoning of Delva is applicable where a defendant's theory of defense against a charge of possession was lack of knowledge of the presence of the substance. The Second District followed the reasoning of Delva in the decision below, whereas the First District followed the reasoning of Scott in Goodman.
I would approve the Second District's decision below, disapprove the Goodman decision, and hold that in cases where a defendant's theory of defense was lack of knowledge of the presence of the substance, the reasoning in Delva, that a theory of defense contesting knowledge of presence does not also place into dispute knowledge of the illicit nature, should be applied. In so doing, I would recede from the statement in Scott that "Scott's argument that he did not possess the drugs and had no knowledge of the drug's presence in his locker encompasses the argument that he was unaware of the illicit nature of the substance." 808 So. 2d at 171. That statement was mere dicta, included to support the Court's conclusion that "the requirement that an instruction must be given does not depend on the defense espoused.
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