Opinion
Case No. 4D99-2419
Opinion filed January 30, 2002. Rehearing Denied February 12, 2002.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ronald J. Rothschild, Judge; L.T. Case No. 98-9980 CF10A.
Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, Fort Lauderdale, for appellee.
Anthony McLemore was tried by jury and convicted of possession of cocaine and possession of cannabis. We agree with McLemore that the trial court erred in failing to give the jury his requested special instruction that an element of the crime is knowledge by the defendant that the substances possessed were marijuana and cocaine. See Chicone v. State, 684 So.2d 736, 746 (Fla. 1996). Even though McLemore disavowed any connection whatsoever to the items, we find that the error was not harmless. See Scott v. State, No. SC94701, 2002 WL 5498, 27 Fla. L. Weekly S31 (Fla. Jan. 3, 2002) (holding that failure to give a properly requested Chicone instruction cannot be harmless error).
Accordingly, we reverse the convictions and sentence and remand for a new trial.
POLEN, C.J., STEVENSON and TAYLOR, JJ., concur.