Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thames v. State

Florida Court of Appeals, Second District

October 27, 2017

ENGLAND THAMES, DOC #W24143, Petitioner,
v.
STATE OF FLORIDA, Respondent.

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

         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 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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.