Opinion
No. 75-476.
April 23, 1976.
Appeal from the Circuit Court, St. Lucie County, Wallace Sample, J.
Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
Since the automobile in which the contraband was found was not in the exclusive possession of appellant, a passenger therein, knowledge of its presence cannot be inferred but must be established by proof. Frank v. State, Fla.App. 1967, 199 So.2d 117. The proof in this record is circumstantial and in our judgment does not rise to that quality necessary to exclude a reasonable hypothesis of innocence; therefore appellant's motion for a judgment of acquittal on the charge of possession of a controlled substance should have been granted.
Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded with directions to discharge appellant.
CROSS, MAGER and DOWNEY, JJ., concur.