Pinellas County Judge Paul Levine – “On Second Thought”: Grants Motion to Dismiss after Initially Denying

Pinellas County Judge Paul Levine reconsiders an initial denial of a C-4 Motion to Dismiss filed by Pinellas criminal defense attorney Richard Watts and ultimately grants the motion.  (Read Judge Levine’s, State v. Bradford 2014).

Attorney Robert Eckard (gives history synopsis of motion):

Essentially, this case first came to Judge Levine’s attention in early November 2014 when it was set for pre-trial. It was filed as Count One Trespass, Count Two Possession of Marijuana. During pre-trial negotiations defense attorney Richard Watts indicated that he could not resolve this case with a plea because the defendant was looking at D.O.C. on a violation of probation for three counts of burglary and had recently been released from state prison. Based upon pre-trial discussions, Mr. Watts filed a C-4 Motion to Dismiss which was ultimately heard on November 25, 2014. The facts are outlined in the written Order.

At the hearing Judge Levine took testimony from the arresting police office, heard legal argument from counsel and reviewed the case law submitted. For reasons set forth in the Order, Judge Levine felt that he had no alternative but to deny the motion to dismiss based upon the language of Cummings v. State, 378 So.2d 879 (Fla. 1st DCA 1979), which essentially holds that knowledge sufficient to establish constructive possession of contraband is an ultimate fact question not subject to a motion to dismiss under the applicable rules of criminal procedure. During the hearing, however, Levine questioned the state more than once as to whether or not there should be, or currently is, some sort of threshold analysis that a court must weigh in order to determine whether there is enough evidence to send the case to a jury in a constructive possession case.

Judge Levine’s original order denying the motion was done orally in court for reasons placed on the record November 25, 2014. Shortly after denying the C-4, Judge Levine was not comfortable with his ruling even though the language of Cummings seemed to require that result. Judge Levine did some additional research, spoke to his colleagues and found two cases that he thought more clearly articulated the current state of the law as it applies to constructive possession.

In K.D.G. v. State, 720 So.2d 281 (Fla. 2nd DCA 1998), the court defined constructive possession as either exclusive or nonexclusive. This was a distinction that was not brought up or addressed at the original hearing. In the case at bar, we had a case of nonexclusive constructive possession. As outlined on page three of the order, K.D.G. states “the state can make out a prima facie case of knowledge by proof of actual or exclusive constructive possession, but proof of nonexclusive constructive possession alone is insufficient to justify an implication of knowledge.”

The court further stated that:

“in cases of jointly occupied vehicles, knowledge and ability to control the contraband may not be inferred, but must be established by independent proof. This proof must consist either of evidence of actual knowledge of the contraband’s presence or evidence of incriminating statements and circumstances from which a jury might reasonably infer the accused’s actual knowledge of the presence of the contraband.”

This is the language Judge Levine felt was missing from the earlier analysis and the court then utilized K.D.G. as well as St. v. Snyder, 635 So2d 1057 (Fla. 2nd DCA 1994), to reverse its earlier ruling. These cases more clearly outlined a more comprehensive analysis when it comes to constructive possession of marijuana and certainly falls in line with a common sense and logical approach to that type of case.

Those cases are not in conflict with the cases submitted by Mr. Watts and the state. Therefore, upon further reflection of the Court’s original order, Judge Levine felt it necessary to do additional research to determine whether or not its original thoughts were correct. Shortly after this Order granting the C-4 Motion to Dismiss, the V.O.P. was dismissed.

The legal community and the residents of Pinellas are fortunate that a jurist took the time to further research his own decision.  Kudos to His Honor for the humility and diligence shown in carrying out his judicial service to the community.

Judge Paul Levine

 

 
 
 

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