Mathis v. State

SCHWARTZ, Senior Judge.

The conviction on appeal for possession with intent to sell cocaine within 1000 feet of a child care facility, as found by the jury, may not stand because the court fundamentally erred in omitting that part of the standard jury instruction which concerned the necessity that any possession be “with the intent to sell” the contraband. § 893.13(l)(c)(l), Fla. Stat. (2006). Although the omission was not objected to below, the failure to instruct on an essential element of the offense, which was a hotly disputed issue at trial and resulted in the possibility that the…