NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT

VALDEMAR VALDEZ, JR.,                         )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D14-4166
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed April 22, 2016.

Appeal from the Circuit Court for Highlands
County; J. Dale Durrance, Judge.

Howard L. Dimmig, II, Public Defender, and
Carol J. Y. Wilson, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa, for
Appellee.


LaROSE, Judge.

              Valdemar Valdez, Jr., appeals his convictions and seven-year prison

sentence for possession of cannabis, possession of drug paraphernalia, and

introduction of contraband into a detention facility. See §§ 893.13(6)(b), 893.147(1),

951.22(1), Fla. Stat. (2013). We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A).

Because the trial court fundamentally erred in instructing the jury on introduction of
contraband into a detention facility, we reverse and remand for a new trial on that

charge. We affirm, without further discussion, as to all other issues raised by Mr.

Valdez.

               Mr. Valdez was arrested on an outstanding warrant for failure to appear in

court in an unrelated matter. A jail deputy took Mr. Valdez's belongings when Mr.

Valdez entered the detention facility. The remains of a marijuana cigarette, or "roach,"

were found inside a locked compartment of a pendant worn by Mr. Valdez.

Consequently, he was charged with, among other things, introduction of contraband into

a detention facility.

               At trial, Mr. Valdez testified that he did not realize there was a roach inside

his pendant. He conceded, however, that he must have put it there at some point. After

all, it was his pendant. During closing arguments, the prosecutor characterized this

testimony as an admission that Mr. Valdez knew the roach was there. That is a stretch.

Mr. Valdez's testimony falls short of establishing that he knowingly or intentionally

brought the roach into the facility. Rather, his testimony shows that he did not recall it

was there.

               "In order to convict for introducing contraband into a detention facility, . . .

the state must prove, and the jury must find that the defendant acted knowingly." Brown

v. State, 

, 282 (Fla. 1st DCA 2014). Thus, the jury had to determine

whether Mr. Valdez knew the roach was in the pendant. The trial court gave the

following jury instruction:

               To prove the crime of introduction of contraband into a
               county detention facility the State must prove the following
               elements beyond a reasonable doubt:



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              First, the defendant introduced contraband into a county
              detention facility.

              Secondly, the defendant did not do so through regular
              channels as duly authorized by the sheriff or officer in charge
              of the facility.

The trial court erred in instructing the jury that it need find only the undisputed fact that

Mr. Valdez, without authority, introduced contraband into the detention facility. See 

              In Brown, a case with facts similar to those now before us, the First District

held that the case hinged on whether the appellant knowingly introduced the contraband

into the facility. 

addressing knowledge, or lack thereof, was material

to what the jury had to consider in order to convict the appellant. 

in

Brown required a guilty verdict if the jury found that the defendant entered the facility

with marijuana in his pocket, even if they found that he did not know it was there and did

not intend to bring it inside. 

instruction "omitted an essential aspect or

element of the offense charged, impermissibly reducing the state's burden of proof." 

the same result with respect to the roach in Mr. Valdez's pendant.

              Mr. Valdez did not object to the erroneous jury instruction. However, it is

fundamental error for the trial court to give a jury instruction on introduction of

contraband into a detention facility that does not require the jury to find that the

introduction of contraband was done knowingly. 

reverse the

conviction for introduction of contraband into a detention facility and remand for a new

trial on that charge.




                                             -3-
              Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.



WALLACE and BADALAMENTI, JJ., Concur.




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