375 So. 2d 55 | Fla. Dist. Ct. App. | 1979
Concurrence Opinion
concurring specially:
I concur with the result of reversal, however, I feel compelled to speak to the issue of whether a defendant, as in this case must be “placed on the horns of a dilemma” by having to decide whether to put on his own evidence after erroneous denial of his motion for judgment of acquittal at the close of the state’s case and thus risk himself proving the state’s case against him where it has not been previously proven by the state.
In the instant case the record clearly shows that the state did not prove lawful custody of the defendant at the time of the alleged offense. However, the defendant himself did take the stand in his own defense and his comments showed that he was in lawful custody. Likewise the defendant while testifying in his own behalf admitted he knew of the Department of Offender Rehabilitation rule against carrying a concealed knife.
The state may not rely on such proof by the defendant to justify conviction on appeal. For this reason and for those stated in the majority opinion, I concur that the judgment of conviction must be reversed. See Adams v. State, 102 So.2d 47 (Fla.1st DCA 1958).
Lead Opinion
The appellant claims the evidence presented by the state at trial was insufficient to sustain his conviction for violating Section 944.43, Florida Statutes (1977). The statute requires proof that the person charged has been committed to the custody of the Department of Offender Rehabilitation; that while in such custody he is found to have possession of a weapon or certain other prohibited items; and that possession of such item is contrary to a rule or regulation of the Department. There was no proof of any specific rule of the Department introduced into evidence at the trial. Neither was the lawful custody of the appellant established. Maggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969). Accordingly, the judgment of conviction is reversed.
