Opinion
No. 76-781.
April 15, 1977.
Appeal from the Circuit Court, Dade County, Alan R. Schwartz, J.
Arnold I. Levy, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
Before PEARSON, HAVERFIELD and HUBBART, JJ.
This is an appeal by defendant from a conviction for the crime of possession of cannabis in the amount of five grams or less (marijuana). The contraband was discovered in a search of the defendant's apartment, where he resided with a female roommate. Defendant argues that his conviction should be overturned because the State failed to show that he had knowledge of the presence of the narcotics or had control over them, as evidenced by the fact that he was not in exclusive possession of the premises.
We find that the conviction must be reversed on authority of Smith v. State, 279 So.2d 27 (Fla. 1973), where, in a similar fact pattern, the Florida Supreme Court held that a ruling that the required knowledge of the presence of contraband can be inferred to the husband as "head of the household" is not a good policy as it ". . could well render unduly harsh results against a husband in altogether innocent circumstances." The Supreme Court also noted that "[a] couple living together without benefit of clergy under the same situation would apparently enjoy the advantage of a different result, requiring direct evidence of knowledge; such a rule would penalize those who follow the legal requirements of marriage." See also Silva v. State, 344 So.2d 559 (Fla. 1977).
Reversed with directions to discharge the defendant.