BANASZEK v. STATE (2002)

District Court of Appeal of Florida,Second District.

Kenneth BANASZEK, Appellant, v. STATE of Florida, Appellee.

No. 2D01-1404.

Decided: June 05, 2002

James Marion Moorman, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, Bartow, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.

Kenneth Banaszek appeals his convictions for first-degree murder and two counts of possession of a controlled substance. Finding no error in the issues regarding the murder conviction, we affirm it without discussion. We reverse the convictions for possession of a controlled substance and remand for a new trial.

At trial, Mr. Banaszek requested that the jury be given an instruction to determine whether he knew that the drugs were controlled substances, citing Chicone v. State, 684 So.2d 736 (Fla.1996). His request was denied. Subsequent to his conviction, the Florida Supreme Court held that the failure to give a properly requested Chicone instruction cannot be harmless error. Scott v. State, 808 So.2d 166 (Fla.2002). Accordingly, the possession convictions, for which Mr. Banaszek was sentenced to time served, must be reversed and remanded for a new trial.

Affirmed in part, reversed in part, and remanded for a new trial.

BLUE, Chief Judge.

GREEN and COVINGTON, JJ., Concur.

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