 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Burnette v. State4/27/2005
ense, i.e., possession of a specific substance and knowledge of the presence of the substance, and still be able to assert the defense that he did not know of the illicit nature of the specific substance. Thus, the affirmative defense created by section 893.101 does not violate due process by abrogating the State's burden of proving the defendant's guilt beyond a reasonable doubt, and Burnette's constitutional challenge must fail.
Burnette's second issue on appeal challenges the instruction given to the jury regarding the affirmative defense created in section 893.101. The giving or withholding of a proposed jury instruction is reviewed by this court under an abuse of discretion standard. McKenzie v. State, 830 So. 2d 234, 236 (Fla. 4th DCA 2002). A trial court should not give instructions that are confusing, contradictory, or misleading. Butler v. State, 493 So. 2d 451 (Fla. 1986).
In this case, the trial court gave an incomplete instruction on the law as set out in section 893.101 by failing to inform the jury that Burnette's lack of knowledge of the illicit nature of the substance was a defense to the possession charge. The incomplete instruction was confusing and misleading because, though the trial court instructed the jury that the defendant's knowledge of the illicit nature of the substance was " n issue in this case," it failed to provide any indication that lack of knowledge was a defense to the charge against Burnette.
Burnette's defense was based on a lack of knowledge of the presence of the substance and of its illicit nature, and the defense presented evidence that neither the pills nor the vehicle in which they were found belonged to Burnette. Thus, we find there is a reasonable probability that the erroneous instruction contributed to the conviction and therefore was not harmless. See San Martin v. State, 717 So. 2d 462 (Fla. 1998) (applying State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), harmless error test to erroneous jury instruction). Accordingly, we reverse Burnette's conviction for possession of diazepam and remand for a new trial on this offense. We affirm without comment as to Burnette's remaining two claims and affirm the remaining convictions.
Affirmed in part, reversed in part, and remanded.
CANADY and VILLANTI, JJ., Concur.
|