District Court of Appeal of Florida, Second District.
*569 James Marion Moorman, Public Defender, Bartow, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
Chastity Cruz ("Cruz") appeals her conviction and sentence for sale of cocaine (Count I) and the possession of cocaine (Count II). She argues that the State failed to present sufficient evidence and the trial court erred in not granting her motions for judgment of acquittal. We affirm the conviction on Count I without further comment but reverse as to Count II.
The State charged Cruz in Count II with the possession of a crack pipe that contained cocaine residue. Police found the pipe on the floorboard of the car Cruz was driving at the time law enforcement stopped her. At trial, the officer testified that the pipe was in plain view, only four to five inches from the gas pedal. The testimony also showed that a passenger was in the car at the time of the stop.
The State suggests that since the pipe was so close to Cruz's feet, she had dominion and control, and that since it was in plain view, she had the requisite knowledge. However, when the contraband is not on the actual person but is found in a jointly occupied vehicle, knowledge and ability to control cannot be inferred but must be shown by independent proof. See E.A.M. v. State, 684 So. 2d 283 (Fla. 2d DCA 1996). The State failed to present such proof, and the trial court erred in failing to grant the motion for judgment of acquittal as to Count II.
We affirm as to Count I and reverse as to Count II.
BLUE, A.C.J., and FULMER, J., Concur.
