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State Must Still Prove Elements of Constructive Possession for Violation of Probation Cases

In Jacksonville and throughout Florida, when a person pleads guilty or no contest to a crime or has a trial that ends in a guilty verdict, the judge will sentence the defendant. For more serious crimes, that sentence may include jail or prison time, probation or a combination of the two. When a person is on probation, he/she will have certain conditions with which he/she must comply or risk going back in front of the sentencing judge, having the probation revoked and being re-sentenced to harsher penalties. Prior to any sentence for a violation of probation, the defendant is entitled to a hearing on the probation violation allegations. These hearings are unlike a trial in two major ways. First, the judge decides whether the defendant violated his/her probation. A defendant does not have a right to have a jury decide probation violation cases in Florida. Second, the legal standard is lower for probation violation cases. In regular criminal cases, the state must prove the defendant is guilty by the “beyond a reasonable doubt” standard. In probation violation cases, the state need only prove a violation(s) occurred by “a preponderance of the evidence” standard, which is much lower. That latter standard is basically a “more likely than not” or “50% plus 1” standard.

A new crime committed by the defendant can certainly be the basis for a violation of probation case if the defendant was on probation when the new crime occurred. However, when the alleged violation of probation is a new crime, the state must still prove the elements of that crime. If the new alleged crime is a possession of marijuana or other illegal drug case and the state is relying on a constructive possession theory, the state must prove the elements required for constructive possession.

As we have written several times in the past, the state can prove possession of illegal drugs in two general ways. Actual possession is what it sounds like- a person is holding the drugs or has them on his person. Constructive possession deals with drugs near a person or in a place the person controls (such as his/her car or home) where the person knows the drugs are there and has the ability to exercise dominion and control over the drugs. Where drugs are near a person or in a place he/she is commonly found but the person does not know the drugs are present, the elements of constructive possession are not met and the person is not guilty of possession of the illegal drugs. This is true whether the allegation is a new drug possession charge or a violation of existing probation.

In a recent case in Jacksonville, Florida, a person who was on felony probation was driving his car and had a woman passenger in the backseat. Jacksonville police found marijuana concealed in a makeup bag in the backseat of the car. The defendant did not admit to knowing anything about the marijuana but did say that he knew the woman used marijuana and told the officer he probably should not have had her in his car. The state attempted to violate his probation based on his alleged possession of the marijuana.

Even though this was a probation violation case with the lower legal standard, the violation of probation charge was improper. The state still had to prove the elements of constructive possession of the marijuana. However, the state could not prove that the defendant driver knew the marijuana was in the makeup bag and had any ownership or control of the makeup bag and the marijuana inside. As a result, there was insufficient evidence that the defendant driver constructively possessed the marijuana. The violation of probation case was thrown out as to the possession of marijuana allegation.