Norman v. State (826 So. 2d 440, 2002)

BENTON, J.

Roderick Norman appeals his conviction for sale or delivery of cocaine, contending that he was entitled to a jury instruction the trial court refused to give, which would have required the jury to find, in order to convict, that he knew that the substance that changed hands was cocaine. The state argues that a statute enacted after the offense allegedly occurred, governs the outcome of the appeal, and precludes reversal otherwise con-cededly required by our supreme court’s recent decision in McMillon v. State, 813 So.2d 56 (Fla.2002). We reject this contention as repugnant to article X, section 9, of the Florida Constitution, which prohibits retroactive application of statutes in criminal proceedings in these words: “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” Accordingly, we reverse and remand for a new trial before a jury instructed in the manner the supreme court required in McMillon v. State, 813 So.2d 56, 58 (Fla.2002).

. There was no evidence that the appellant ever had physical custody of the cocaine it was alleged he sold or delivered. But this circumstance is not controlling. See McMil-lon v. State, 813 So.2d 56, 58 (Fla.2002) (holding "the trial court's failure to grant McMillon's request for the specific jury instruction harmful error" despite his "actual possession"); Scott v. State, 808 So.2d 166, 170-71 (Fla.2002) ("Since the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.”).

. Creating Section 893.101, Florida Statutes, Chapter 2002 258, section 1, Laws of Florida, provides:

893.707. Legislative findings and intent.—

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 [808 So.2d 166] (Fla.2002) and Chicone v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.