Filed: Oct. 27, 2017
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ENGLAND THAMES, DOC #W24143, ) ) Petitioner, ) ) v. ) Case No. 2D16-2896 ) STATE OF FLORIDA, ) ) Respondent. ) ) Opinion filed October 27, 2017. Petition Alleging Ineffective Assistance of Appellate Counsel. Polk County; Reinaldo Ojeda, Judge. England Thames, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney Ge
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ENGLAND THAMES, DOC #W24143, ) ) Petitioner, ) ) v. ) Case No. 2D16-2896 ) STATE OF FLORIDA, ) ) Respondent. ) ) Opinion filed October 27, 2017. Petition Alleging Ineffective Assistance of Appellate Counsel. Polk County; Reinaldo Ojeda, Judge. England Thames, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney Gen..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ENGLAND THAMES, DOC #W24143, )
)
Petitioner, )
)
v. ) Case No. 2D16-2896
)
STATE OF FLORIDA, )
)
Respondent. )
)
Opinion filed October 27, 2017.
Petition Alleging Ineffective Assistance
of Appellate Counsel. Polk County;
Reinaldo Ojeda, Judge.
England Thames, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Respondent.
LUCAS, Judge.
England Thames has filed a petition under Florida Rule of Appellate
Procedure 9.141(d), in which he asserts that his appointed appellate counsel was
ineffective for failing to raise an argument concerning the jury instructions that were
used, but never objected to, at his trial. Finding no fundamental error under the facts of
this case, we deny his petition for the reasons that follow.
I.
The State charged Mr. Thames with (1) sale of cannabis under section
893.13, Florida Statutes (2014), (2) actual or constructive possession of a conveyance
used for the trafficking, sale, or manufacture of controlled substances in violation of
section 893.1351, and (3) solicitation to purchase cannabis under sections 777.04,
Florida Statutes (2014), and 893.13. The jury acquitted Mr. Thames of the first and third
charges but found him guilty of the second. The circuit court sentenced him to fifteen
years in prison as a habitual violent felony offender. He appealed his judgment and
sentence, which this court affirmed without a written opinion. Thames v. State, No.
2D14-3629, 2015 WL 6777325 (Fla. 2d DCA Nov. 6, 2015) (table).
The relevant facts adduced at the trial were fairly succinct. On January 2,
2014, two undercover law enforcement officers approached three men who were
standing by a Chevrolet Caprice. One of the officers asked the men if they had twenty
dollars' worth of marijuana, and one of the men indicated that he did; that man then
opened the driver's door of the car, reached inside, and pulled out four small bags
containing marijuana. After exchanging the marijuana and twenty dollars, the officer
then asked the man he had initially contacted for his telephone number, but the man
responded that he did not have a phone. He asked his two companions if they would
provide the undercover officer with a contact number. Mr. Thames gave his cell phone
number and gestured toward his pocket when the undercover officer called it. The
entire transaction was filmed, and the jury viewed the recording. Throughout the
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transaction, Mr. Thames stood by or leaned on the Caprice, a car which, the officers
later learned, Mr. Thames in all probability owned.1
At the conclusion of the trial, the circuit court gave the jury the following
instruction for the charge of actual or constructive possession of a conveyance used for
the trafficking, sale, or manufacture of controlled substances:
To prove the crime of actual or constructive possession of a
structure used for trafficking, sale or manufacture of a
controlled substance the State must prove the following two
elements beyond a reasonable doubt[:]
first, the defendant was in actual or constructive possession
of a place, structure or part thereof, trailer or conveyance;
and secondly, the defendant had knowledge that the place,
structure or part thereof, trailer or conveyance would be
used for the purpose of sale or distribution of a controlled
substance.
Let us state at the outset, the first element in this instruction was
erroneous. Section 893.1351(2) reads: "A person may not knowingly be in actual or
constructive possession of any place, structure, or part thereof, trailer, or other
conveyance with the knowledge that the place, structure, or part thereof, trailer, or
conveyance will be used for the purpose of trafficking in a controlled substance . . . ."
(Emphasis added.) By omitting the word "knowingly" from the first element in the
instruction, the jury was not informed that Mr. Thames had to knowingly be in
1
Mr. Thames had a car of the same make, model, and year as the
Chevrolet Caprice registered in his name. Mr. Thames did not testify at his trial, but his
expired registration of what appeared to be the same vehicle was admitted into
evidence at the trial.
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possession of the Caprice in order to be found guilty of this offense.2 However, his
defense counsel did not object to the substance of this instruction (or to the omission of
any definition for constructive possession elsewhere within the instructions). Indeed,
Mr. Thames' attorney stipulated to the jury instructions that were ultimately used, both at
the charge conference and at the time the instructions were read to the jury.
In his petition now before us, Mr. Thames claims this instruction was
fundamentally erroneous because it lacked the first element of knowledge required by
section 893.1351(2). He further asserts that his appellate counsel was ineffective for
failing to raise that argument in his prior direct appeal. On the facts of this case, we
must disagree.
II.
To establish a claim of ineffective assistance of appellate counsel, the
Florida Supreme Court explained in Rutherford v. Moore, 774 So. 2d 637, 643 (Fla.
2000), a petitioner must show
first, that appellate counsel's performance was deficient
because "the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling
measurably outside the range of professionally acceptable
performance" and second, that the petitioner was prejudiced
because appellate counsel's deficiency "compromised the
appellate process to such a degree as to undermine
confidence in the correctness of the result." Thompson [v.
State, 759 So. 2d 650, 660 (Fla. 2000)] (emphasis supplied)
2
The instructions did not define actual or constructive possession.
Although the information charged Mr. Thames with the crime defined in section
893.1351(2), and the jury instruction lists elements of that offense, the written jury
instructions refer to section 893.13(7)(a)(5), which prohibits a person from keeping or
maintaining "any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or
other structure or place which is resorted to by persons using controlled substances in
violation of this chapter for the purpose of using these substances, or which is used for
keeping or selling them in violation of this chapter."
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(quoting Groover v. Singletary, 656 So. 2d 424, 425 (Fla.
1995)); see, e.g., Teffeteller [v. Dugger, 734 So. 2d 1009,
1027 (Fla. 1999)]. If a legal issue "would in all probability
have been found to be without merit" had counsel raised the
issue on direct appeal, the failure of appellate counsel to
raise the meritless issue will not render appellate counsel's
performance ineffective. Williamson v. Dugger, 651 So. 2d
84, 86 (Fla. 1994); see, e.g., Kokal v. Dugger,
718 So. 2d
138, 142 (Fla. 1998);
Groover, 656 So. 2d at 425. This is
generally true as to issues that would have been found to be
procedurally barred had they been raised on direct appeal.
See, e.g., Groover, 656 So. 2d at 425; Medina v. Dugger,
586 So. 2d 317, 318 (Fla. 1991).
See also Evans v. State,
995 So. 2d 933, 954 (Fla. 2008) (holding that because
petitioner "cannot demonstrate that the trial court abused its discretion in denying the
motion [for a mistrial], appellate counsel cannot be ineffective for failing to raise the
meritless issue on direct appeal"). In deciding a petition for ineffective assistance of
appellate counsel, an appellate court cannot fault appellate counsel "for failing to argue
a point which, even if correct, would amount to no more than harmless error." Duest v.
Dugger,
555 So. 2d 849, 853 (Fla. 1990). Where, as here, the claim of ineffective
assistance revolves around appellate counsel's failure to argue an issue that had never
been objected to at trial, the petitioner must demonstrate a fundamental error—that is,
one that "reaches down into the validity of the trial itself to the extent that a verdict of
guilty . . . could not have been obtained without the assistance of the alleged error."
Scott v. State,
66 So. 3d 923, 929 (Fla. 2011) (quoting Poole v. State,
997 So. 2d 382,
390 (Fla. 2008)); see also State v. Delva,
575 So. 2d 643, 644 (Fla. 1991) (holding jury
instructions "are subject to the contemporaneous objection rule, and, absent an
objection at trial, can be raised on appeal only if fundamental error occurred"). With that
in mind, then, we turn to the substantive point of Mr. Thames' argument.
-5-
The jury instruction utilized in Mr. Thames' trial failed to indicate that Mr.
Thames had to "knowingly" be in actual or constructive possession of the conveyance
to be found guilty of violating section 893.1351(2). Without question, that omission
rendered the instruction erroneous because the legislature defined this crime to require
both knowledge of possession of the conveyance and knowledge that the conveyance
will be used for trafficking, sale, or manufacture of a controlled substance. Cf. Nash v.
State, 951 So. 2d 1003, 1004-05 (Fla. 4th DCA 2007) (holding that the trial court
fundamentally erred by leaving the word "knowingly" out of the standard jury instruction
for trafficking in cocaine because the legislature made knowledge of possession an
element of the crime of trafficking and that element was "hotly disputed" during the trial).
Mr. Thames correctly asserts in his petition that the instruction provided to his jury
lacked a requisite knowledge element of his offense.
It is difficult for us to fathom how that could have mattered, though. Mr.
Thames does not contend that the jury's instructions as to what constituted his
possession of this particular conveyance for purposes of section 893.1351(2) were in
any way inaccurate. On that point, at least, there is no argument about whether the jury
was improperly instructed concerning Mr. Thames' possession of the Chevrolet Caprice.
His claim of fundamental error, then, rests solely on the notion that he was never found
to be "knowingly" in possession of it.
But Mr. Thames' knowledge of his possession—set apart, if it can be, from
his status of being in possession—of this car was a point that was never in question
during his trial. Indeed, how could it have been under these facts? Cf. State v. Burns,
457 S.W.2d 721, 724 (Mo. 1970) ("Possession without knowledge of such possession is
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not possession in the legal sense of that word, State v. Nicolosi, 228 La. 65,
81 So. 2d
771 [(1955)]."). Under any plausible view of the facts before us, the jury could not have
found Mr. Thames to have been in possession of the car he was leaning against and
engaging in a drug transaction around without him correspondingly knowing that he was
in possession of it.3 Tellingly, in his petition before us, he makes no claim that that
issue was contested, or how, conceptually, it could have been contested—only that the
instruction was erroneous (which, again, it unquestionably was). Since the issue of Mr.
Thames' knowledge about his possession of the car was never in dispute, the failure to
include the word "knowingly" for that part of the instruction, although an error, did not
amount to fundamental error in this case. See State v. Montgomery,
39 So. 3d 252,
258 (Fla. 2010) ("Failing to instruct on an element of the crime over which the record
reflects there was no dispute is not fundamental error and there must be an objection to
preserve the issue for appeal." (quoting Delva, 575 So. 2d at 645)); Reed v. State,
837
So. 2d 366, 369 (Fla. 2002) ("[W]hether the evidence of guilt is overwhelming or
3
The case of Nash, 951 So. 2d 1003, where the Fourth District found
fundamental error when the jury was not instructed that a defendant had to knowingly
be in possession of cocaine to be convicted of trafficking, is readily distinguishable.
One can easily imagine a circumstance where an individual might unknowingly be in
possession of a substance, such as cocaine, as indeed, in that case, the defendant's
knowledge of the drug's presence "was hotly disputed."
Id. at 1005. Even then, the
Fourth District took care to limit its holding in Nash to the circumstances of that case.
Id. at 1004.
That is not to say that our analysis hinges solely on the fact that the
subject of possession in this case happened to concern a car. We could imagine a
scenario where the question of whether a defendant was knowingly in possession of a
conveyance such as a car would be in dispute. For example, if Mr. Thames owned a
large car lot or a junkyard which contained a vehicle that the State charged was "used
for the purpose of sale or distribution of a controlled substance," the issue might very
well be contested. Here, however, it is simply impossible to imagine any circumstance
under which it could be said that Mr. Thames inadvertently or unknowingly possessed
the Chevrolet Caprice he was leaning against when he conducted this drug transaction.
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whether the prosecutor has or has not made an inaccurate instruction a feature of the
prosecution's argument are not germane to whether the error is fundamental," rather,
"[i]t is fundamental error if the inaccurately defined . . . element is disputed, and the
inaccurate definition 'is pertinent or material to what the jury must consider in order to
convict.' " (citation omitted) (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982))).
Our colleague's dissent, though thoughtful and thorough, elides this
issue.4 Mr. Thames' petition suffers the same shortcoming. It is not for this court to
speculate how Mr. Thames might have disputed whether he could have been in
possession of this car without "knowingly" being in possession of this car—our task is to
determine from the record whether this discrete issue was ever disputed at any point in
the proceedings below. It was not.
Consistent with Montgomery, Reed, and Delva, then, we do not consider
this erroneous omission to be a fundamental error in Mr. Thames' case. There was no
dispute over the issue of Mr. Thames' knowledge of whether he was in possession of
his Chevrolet Caprice.5 The error as to that part of the jury instruction did not reach
4
Our colleague recognizes that section 893.1351(2)'s inclusion of the word
"knowingly" imparts "a distinct mental element" into this criminal offense. Yet, in
gleaning "a disputed issue of fact" for purposes of fundamental error, the dissent
appears to collapse the distinct (but undisputed) mental element of Mr. Thames'
knowledge into the separate (and disputed) element about Mr. Thames' actual or
constructive possession of the vehicle. At trial, Mr. Thames' counsel only argued that
he was not in actual or constructive possession of this vehicle. A jury found otherwise,
and Mr. Thames does not challenge that finding or the instruction (defining actual or
constructive possession) that precipitated it in his petition. As to whether Mr. Thames
was knowingly in actual or constructive possession of this car—an issue we can all
agree would be separate and distinct from his possession—that dispute is nowhere to
be found in this record.
5
In so holding, we are cognizant of the observation made by one of our
former colleagues: "District courts have with varying results continued to apply Delva's
-8-
"down into the validity of the trial itself," Poole, 997 So. 2d at 390, and so we conclude it
was not fundamental in this case.
Petition denied.
CRENSHAW, J., Concurs.
WALLACE, J., Dissents with opinion.
WALLACE, Judge, Dissenting.
I respectfully dissent. The majority acknowledges that the knowing nature
of Mr. Thames' actual or constructive possession of the car at issue is an element of the
offense as defined by the legislature and that the knowing nature of the alleged
possession was essential to what the jury was required to determine in order to find Mr.
Thames guilty of the crime defined in section 893.1351(2). But the majority equates this
element with knowledge that the car was present and concludes that "Mr. Thames'
knowledge of his possession . . . of this car was a point that was never in question
during his trial." I disagree with both this interpretation of the statute and with the
majority's conclusion this element was not disputed at trial. I would hold that the
omission of this element from the jury instruction was fundamental error and that the
distinction between the failure to instruct on an element that is disputed—which
constitutes fundamental error—and the failure to instruct on an element that is not
disputed—which does not constitute fundamental error." Garcia v. State, 854 So. 2d
758, 769 (Fla. 2d DCA 2003), quashed by
901 So. 2d 788 (Fla. 2005). So long as
Delva remains the law in Florida, we must continue applying the distinction that it
formulated.
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failure of Mr. Thames' appellate counsel to raise this error in Mr. Thames' direct appeal
was deficient performance that undermines confidence in the outcome.
I. THE INSTRUCTION AS FUNDAMENTAL ERROR
Section 893.1351(2) contains two separate elements regarding knowledge
that the State must prove to obtain a conviction. First, the State must establish that the
accused's possession of the place, structure, trailer, or conveyance was undertaken
"knowingly." Id. Second, the State must also prove that such possession was
undertaken "with the knowledge" that the place, structure, trailer, or conveyance will be
used for a prohibited purpose as described in the statute. Id.; see Notice, Amendments
to Jury Instructions, Fla. Bar News, Jan. 15, 2017, at 21 (proposing a new jury
instruction 25.13(g) for the offense set forth in section 893.1351(2)). I will refer to the
first element as the "conscious purpose" requirement and the second element as the
"guilty knowledge" requirement.
These two elements are separate and distinct. A similarly worded
requirement that the accused's possession be undertaken "knowingly" appears in
section 893.135, the trafficking statute. In construing the meaning of the term
"knowingly" as used in the trafficking statute, the Fourth District explained that the
legislature's use of the term "knowingly" cannot mean the same thing as knowledge of
the contraband's presence. Gartrell v. State, 609 So. 2d 112, 114 (Fla. 4th DCA 1992),
quashed on other grounds,
626 So. 2d 1364 (Fla. 1993). Instead, the legislature's use
of the term "knowingly," when used in conjunction with possession, must be interpreted
so as to give it a separate meaning. See
id. With regard to the trafficking statute, the
Fourth District said that the term "knowingly" "has been interpreted by our supreme
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court to mean that the defendant must know the nature of the particular substance he
possesses." Id. (citing State v. Dominguez,
509 So. 2d 917 (Fla. 1987)).6
Section 893.1351(2), Florida Statutes (2014), the statutory provision under
review here, uses the term "knowingly" with reference to the possession of places,
structures, trailers, and conveyances. Unlike in the trafficking statute, these things are
not contraband. Therefore, part of the court's proper task here is to determine what the
term "knowingly" means with regard to the possession of these items.
I take the word "knowingly" as used in section 893.1351(2) to mean that
the accused's possession of the place, structure, trailer, or conveyance must have a
distinct mental element, i.e., "a conscious and substantial possession by the accused,
as distinguished from a mere involuntary or superficial possession." Reynolds v. State,
111 So. 285, 286 (Fla. 1926). Thus, for the State to prove that the accused undertook
to possess a place, structure, trailer, or conveyance "knowingly," it must show that the
accused acted in accordance with a conscious purpose to achieve the substantive
possession of the item in question. Stated differently, the State must show that the
accused had the intent to exercise a right of control over a place, structure, trailer, or
conveyance with the conscious awareness that he or she is doing so. See generally
Richard Sanders, The Knowledge Element in Drug Cases: Some Final Thoughts on
Shelton and Adkins, 88 Fla. B.J. 40, 43 n.17 (July/Aug. 2014) (reviewing case law and
6
The legislature eliminated the element that the defendant know of the
illicit nature of the contraband effective May 13, 2002. § 893.101, Fla. Stat. (2002); ch.
2002-258, § 1, at 1848, Laws of Fla.; Knight v. State, 186 So. 3d 1005, 1008 n.2 (Fla.
2016).
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discussing the mental elements involved in the proof of offenses involving possession of
controlled substances).
The majority equates knowing possession with knowledge that the car
was present and concludes that "the jury could not have found Mr. Thames to have
been in possession of the car he was leaning against and engaging in a drug
transaction around without him correspondingly knowing that he was in possession of
it." From this assertion about the jury's verdict, the majority leaps to the unwarranted
conclusion that "the issue of Mr. Thames' knowledge about his possession of the car
was never in dispute." But this assertion, even if the statute is interpreted to equate
knowing possession with knowledge of the car's presence, is flawed because the
majority focuses on the jury's verdict instead of on the question of what was actually
disputed during the trial. The jury's verdict and the disputed issues of fact at the trial—
both of which are demonstrable from the record7—are obviously two different things.
7
Mr. Thames' direct appeal record shows that he did not concede the
element of knowing possession. See Licata v. State, 88 So. 621, 622 (Fla. 1921) ("The
plea of not guilty puts in issue every material element of the crime charged in the
information . . . ."). Rather, as the majority acknowledges, the direct appeal record
shows that Mr. Thames vigorously disputed that he actually or constructively possessed
the car. It follows that he disputed that he knowingly possessed the car. See,
e.g., Wolfork v. State, 992 So. 2d 907, 910 (Fla. 2d DCA 2008) ("Wolfork's defense at
trial was that he did not cause the injury to the victim. Thus Wolfork implicitly argued
that he did not intentionally or knowingly cause said injury."). His counsel argued in
closing:
You have heard no information actually, okay, about who
was possessing, who was – that Mr. Thames was
possessing or Mr. Thames was constructively possessing
the vehicle.
All he's doing again is standing next to the vehicle,
keep that in mind. The person who is exercising dominion,
control, okay, over the vehicle is this other individual. He is
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Here, the majority inexplicably seizes on the jury's verdict as a substitute for analyzing
the issue about which the parties contended at trial. But the question of whether Mr.
Thames' alleged possession of the car was knowing, or with a conscious purpose, was
a disputed issue of fact at the trial of this case. Undeniably, the jury's verdict did not
change that fact.
the one in the video who is opening the door, going inside
the vehicle, coming out, okay. Keep that in mind, there is
nothing in that video showing Mr. Thames exercising any
dominion, any control, anything that would indicate that he's
in actual possession of the vehicle. You know, an indication
that some expired registration indicating that at some point
this vehicle was registered to Mr. Thames again assuming
that that registration is for that vehicle because in that video
there's no – you're not shown a tag. The vehicle is turned
around. But assuming that that is the registration for that
vehicle, that in no way is evidence of actual or constructive
possession.
The question is at the moment – at that time on
January 2 during that video, the incident described in the
video or shown or depicted in the video, is Mr. Thames
actually or constructively possessing the car. And again,
merely standing by is not enough to show that he's in
possession of the vehicle. It's not. And the one exercising
control, the one exercising control, the one exercising
dominion over the vehicle is the other guy. And again that
has to be shown in order for you to determine that Mr.
Thames was in actual or constructive possession of the
vehicle.
Keep in mind that there's been no evidence
whatsoever indicating that Mr. Thames drove the vehicle,
that he had keys on him for the vehicle, that, you know, any
of the other, you know, indicators of control or possession of
an item because again control, possession are
distinguishable from an ownership interest in something
assuming he had one. Two different things, two different
concepts. And what the instruction talks about is control,
possession, actual constructive possession, no mention of
ownership interest whatsoever.
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Two examples will suffice to demonstrate how the first knowledge element
in section 893.1351(2)—the conscious purpose requirement—operates in practice. A
real estate broker tasked to sell a home or commercial building may have a set of keys
and access to the property. But absent special circumstances, the real estate broker
generally does not possess the property; he or she has no purpose to do so. See Polio
v. First Niagra Bank, Nat'l Ass'n, 2014 WL 5099211 *6 (Conn. Sup. Ct. 2014); Knight v.
Realty USA.com, Inc.,
947 N.Y.S.2d 693, 694 (App. Div. 2012); Christopher v. McGuire,
169 P.2d 879, 881 (Ore. 1946). A house guest or a casual visitor to a residence—even
one left alone in the home—has a limited right to access and to occupy the property, but
he or she does not "knowingly" possess the premises. Cf. J.S.M. v. State,
944 So. 2d
1143, 1144 (Fla. 2d DCA 2006) (holding that the State had failed to prove that the
defendant had dominion and control over contraband because there was no evidence
that he was an occupant of a hotel room rather than a guest at a party); Harris v. State,
954 So. 2d 1260, 1262 (Fla. 5th DCA 2007) (holding that a mere visitor to a residence
did not have dominion and control over contraband found in the residence where the
visitor "was neither an owner nor an occupant of the premises").8
These examples demonstrate that the requirement that the accused's
possession of the place, structure, trailer, or conveyance be undertaken "knowingly"—
i.e., with a conscious purpose—is entirely separate from the requirement that such
possession also be accompanied by guilty knowledge. The legislature defined the
offense in section 893.1351(2) to require that the State establish both of these elements
of knowledge. Moreover, the Florida Supreme Court teaches that we cannot read the
8
For cases involving similar examples, see Sanders, supra.
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requirement that an offense be committed "knowingly" out of a criminal statute. Polite v.
State, 973 So. 2d 1107, 1112-13 (Fla. 2007). If we do otherwise, "we would be
disregarding the maxim of statutory construction that courts are required to give
significance and effect to every word or phrase in a statute."
Id. at 1113. Accordingly,
the requirement that Mr. Thames' possession of the car be undertaken "knowingly," or
with a conscious purpose, was pertinent and material to what the jury needed to
consider to convict.
II. DEFICIENT PERFORMANCE
To establish a claim of ineffective assistance of appellate counsel, the
petitioner must show that counsel performed deficiently and that "the deficiency of that
performance compromised the appellate process to such a degree as to undermine
confidence in the fairness and correctness of the appellate result." Downs v. Moore,
801 So. 2d 906, 909-10 (Fla. 2001) (quoting Wilson v. Wainwright,
474 So. 2d 1162,
1163 (Fla. 1985)). "This court applies the law in effect at the time of the appeal to
determine whether counsel's performance was deficient" and "current law to determine
whether the petitioner is entitled to relief." Horne v. State,
128 So. 3d 953, 956 (Fla. 2d
DCA 2013) (citing Brown v. State,
25 So. 3d 78, 80 (Fla. 2d DCA 2009)).
At the time of Mr. Thames' direct appeal, this court had held that
fundamental error occurred when jury instructions omitted an element of knowledge of a
charged offense and the defendant disputed the omitted element at trial. See
Barrientos v. State, 1 So. 3d 1209, 1217-18 (Fla. 2d DCA 2009) (holding that the trial
court committed fundamental error by omitting the word "knowingly" from the element of
possession in the jury instruction for trafficking in cocaine); Wolfork v. State, 992 So. 2d
- 15 -
907, 910 (Fla. 2d DCA 2008) (holding that the omission of the words "intentionally or
knowingly" from the second element of aggravated battery on a law enforcement officer
constituted fundamental error); see also Nash, 951 So. 2d at 1004-05. Accordingly, this
issue was one that should have been raised under the "prevailing professional norms"
of appellate practice. See Morris v. State,
931 So. 2d 821, 828 (Fla. 2006) (quoting
Strickland v. Washington,
466 U.S. 668, 688 (1984)). The error in the jury instruction
remains fundamental error under current law. See, e.g., Ramroop v. State,
214 So. 3d
657, 665-66 (Fla. 2017) (holding that in a trial for attempted second-degree murder of a
law enforcement officer, the jury instruction that omitted the element of knowledge that
the victim was a law enforcement officer when the defendant committed the offense was
fundamental error and therefore "per se reversible").
III. CONCLUSION
I would grant the petition, vacate Mr. Thames' judgment and sentence,
and remand for a new trial.
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