
    Frederick Lawrence SNYDER, Appellant, v. STATE of Florida, Appellee.
    No. II-307.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1978.
    Rehearing Denied Oct. 24, 1978.
    
      Selig I. Goldin, of Goldin & Cates, Gaines-ville, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, convicted below of a violation of probation, contests the sufficiency of the evidence to support that finding. We believe the state’s proof was sufficient and affirm.

The facts reveal that appellant was arrested for possession of controlled substances during a probationary period after an off-duty policeman observed that a Mercedes automobile he was driving was weaving from lane to lane on a Jacksonville highway. Appellant was pulled over and discovered to be drinking a bottle of beer. One officer administered a field test for intoxication, which appellant passed. Meanwhile, however, another policeman, checking the license plates and inspection stickers on the car, noticed a purse or saddlebag on the passenger side of the front seat of the vehicle. This officer stated that he saw a cellophane bag which appeared to contain marijuana sticking out one or two inches from the saddlebag. He searched the bag, discovered marijuana, and arrested appellant. Other controlled substances were subsequently discovered in the bag.

Appellant’s story at the probation violation hearing was that he had been interested in purchasing the automobile in question and had arranged on the day of his arrest to pick up the vehicle for a test drive from a Jacksonville dealership. The vehicle was apparently owned privately but had been delivered to the dealership to facilitate its sale. Appellant stated that he had picked the car up that afternoon, driven it home, washed it off with a hose because it was dusty, taken a nap, and had then left his home to return the car to its owner when he was pulled over by the police officers. He stated that he had seen the saddlebag on the front seat but had not looked into it. He denied that a cellophane bag was sticking out of the bag.

We believe there is ample support for the revocation of appellant’s probation. Appellant admitted in his testimony that he had had the exclusive possession of the vehicle containing the bag of marijuana for approximately six hours at the time of his arrest. With that evidence, it is doubtful that the “constructive possession” doctrine enunciated by this court in Frank v. State, 199 So.2d 117 (Fla. 1st D.C.A. 1967) was applicable to this case. Even if constructive possession analysis is used, there is evidence supporting an inference of guilty knowledge here. The arresting officer testified on rebuttal that appellant “told me I couldn’t have seen it because it was zipped up in his bag and I had illegally searched his bag” at the time of his arrest. Frank, supra, allows an inference that the accused had knowledge of the drugs’ presence if there is evidence of an incriminating statement. Moreover, there is abundant case law establishing that proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking probation. See e. g., Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974); Russ v. State, 313 So.2d 758, 760 (Fla.1975). Cf. Croteau v. State, 334 So.2d 577 (Fla.1976).

The order revoking probation is affirmed.

McCORD, C. J., and ERVIN, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. The state’s entire case against appellant here consisted of the testimony of the off-duty police officer who had initially observed the Mercedes, the two officers who had arrested appellant, and a correctional officer who had checked appellant in at the county jail on the night of the arrest but who could not recall whether the controlled substances attributed to appellant were found in the saddlebag or on appellant’s person. There was no evidence linking appellant with the bag or any item in it, nor was there any indication that the officers smelled marijuana in the car or discovered any paraphernalia or remains of marijuana jn the car before or after appellant’s arrest. Appellant’s story was supported by the testimony of two of the car dealership’s employees who stated that they had observed the saddlebag in the automobile while it was parked at the dealership before appellant had picked it up.

On this record, I believe the state failed to prove that appellant knowingly possessed marijuana or other controlled substances and thereby violated the terms of his probation. The uncontroverted facts establish that appellant did not own the car in which the substances were found and that the bag containing the substances had been in the car before it came into appellant’s brief possession. No connection between appellant and the bag was ever proved. Furthermore, even if the marijuana was in “plain view”, there was no evidence that appellant saw it or could have recognized it as an illegal substance. The evidence was insufficient to prove the offense, and I would reverse the order revoking probation.  