01-3271 GONZALEZ V. STATE

State: Florida

Court: Florida Southern District Court

Docket No: 3d01-3271

Case Date: 12/18/2002

Plaintiff: 01-3271 GONZALEZ

Defendant: STATE

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

THOMAS GONZALEZ, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** CASE NO. 3D01-3271 LOWER TRIBUNAL NO. 00-31690

Opinion filed December 18, 2002. An Appeal from the Circuit Court for Dade County, Maria Dennis, Judge. Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant. Richard E. Doran, Attorney General, and Michael J. Neimand and Mark Rosenblatt, Assistant Attorneys General, for appellee.

Before JORGENSON, FLETCHER, and RAMIREZ, JJ.

PER CURIAM.

Defendant appeals from a judgment of conviction and sentence for carrying a concealed firearm. For the reasons that follow,

we reverse and remand for entry of a judgment of acquittal. "Where a defendant is not in actual possession of a firearm, constructive possession must be established." Williams v.

State, 724 So. 2d 1214, 1215 (Fla. 4th DCA 1998). constructive possession, the State must prove

To establish that: (1)

defendant knew that the firearm was within his presence; (2) defendant had the ability to maintain control over it; and (3) defendant knew of the illicit nature of the firearm. Id. If

the property where the firearm is found is not in defendant's exclusive control, defendant's knowledge of the presence of the firearm must be established by independent proof. Id. See also

Smith v. State, 687 So. 2d 875 (Fla. 2d DCA 1997). In this case, defendant was the driver of a truck in which the weapon was found. with him. There were two passengers in the truck

The weapon in question was partially concealed in the

back of the truck behind the driver's seat between the panel and the rear seat. There was no evidence that defendant had

knowledge or dominion and control over the weapon. REVERSED.

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