
    Isais GARCIA TORRES, Appellant, v. STATE of Florida, Appellee.
    No. BK-262.
    District Court of Appeal of Florida, First District.
    April 1, 1987.
    
      Roger 0. Mills, of Joseph R. Fritz, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of his conviction for possession of marijuana, in violation of section 893.13(l)(e), Florida Statutes. He contends the court erred in admitting similar fact evidence of another crime and in permitting the state to comment on $12,500 cash belonging to appellant and found in the vehicle in which he was a passenger. We affirm.

Appellant was a passenger in a vehicle stopped for speeding April 29, 1986, on Interstate-10 by Florida Highway Patrol Trooper Barney Stalworth. Stalworth testified that he detected the odor of marijuana when he asked the driver, Larry Bazan, to step out of the car. Stalworth stated he searched the passenger area, finding a small bag of marijuana buds between the seats. He then searched the trunk, finding a bag of marijuana in a wine cooler bag belonging to Bazan, a smaller quantity of marijuana in a camera case belonging to appellant, and $12,500 in cash, also in the camera bag. Prior to trial, appellant filed motions in limine to prevent admission of evidence of appellant’s prior arrest for possession of marijuana and any comment by the state on the $12,500. The court denied the motions. At trial, Florida Highway Patrol Trooper Daniel Maddox testified that he arrested appellant November 3, 1984, for possession of marijuana after he stopped the vehicle appellant was driving on Interstate-10 and smelled marijuana. After searching the vehicle, Maddox found two and a half pounds of marijuana in the trunk.

Section 90.404(2)(a), Florida Statutes, provides that:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is solely to prove bad character or propensity.

We recognize that, of course, that general similarity does not qualify similar fact evidence for admission. There must be identifiable points of similarity which pervade the compared factual situations. Drake v. State, 400 So.2d 1217 (Fla.1981). We find, on application of this rule, that appellant’s prior arrest for possession of marijuana involved circumstances sufficiently similar to those involved here. In the prior arrest, appellant was found to be in possession of the same controlled substance, which was found in the trunk of a car he was driving on Interstate-10. The state sought to admit evidence of the prior arrest to show appellant’s ability to identify marijuana and knowledge of its presence, an element of the crime of possession of marijuana. Evidence of appellant’s pri- or arrest was relevant to that issue.

As to the second issue raised, the record shows appellant did not object at trial to the admission of evidence regarding the $12,500 found in the vehicle. That issue is therefore not properly presented for the first time on appeal absent showing of fundamental error. Crespo v. State, 379 So.2d 191 (Fla. 4th DCA 1980).

The order is affirmed.

BOOTH, C.J., concurs.

ZEHMER, J., dissents with written opinion.

ZEHMER, Judge

(dissenting).

I would reverse and remand for a new trial because the trial court erred in admitting, over appropriate objection, the so-called similar fact evidence of a prior offense.

In Garrette v. State, 501 So.2d 1376 (Fla. 1st DCA 1987), we stated that in determining the admissibility of similar fact evidence under section 90.404(2)(a), Florida Statutes (1985), the court must consider and weigh the similarities and dissimilarities between the crime charged and the collateral crime. However, general similarities are not sufficient:

There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant.

Garrette v. State, at 1378 (quoting Peek v. State, 488 So.2d 52 (Fla.1986)).

Only general similarities exist between the two incidents. In both, appellant was traveling in an automobile in which law enforcement officers found various amounts of marijuana. From this point on the facts are dissimilar. The first incident, some five months before the charged offense occurred, involved an automobile being driven by appellant with no one else present, and two-and-one-half pounds of marijuana were found in the vehicle’s trunk. In the instant case, appellant was one of three passengers in a car over which he did not have control. The driver Kazan, testifying for the state, admitted the small bag of marijuana found in the passenger compartment between the two front seats was his. Kazan also admitted the larger quantity of marijuana found in Kazan’s shaving kit and hanging bag in the trunk were his. Trooper Stalworth testified he found “a small baggie of marijuana” in appellant’s camera bag. This was the only evidence to link appellant to any of the marijuana in the automobile.

The similarities between the two incidents do not have the required “special character” or are so unusual as to point to the defendant. There are no similarities possessing such unusual or special character which pervade the compared factual situations. In my opinion, the only purpose served by admitting the evidence of the prior incident was to show the defendant’s propensity to commit crime, a purpose clearly prohibited by section 90.404(2)(a). Certainly the compared factual situations in the instant case are no more similar than the similar fact evidence held inadmissible in Garrette. It was not argued that appellant did not know what marijuana looked or smelled like; the only issue involved was whether there was in fact any marijuana in his camera case, and appellant’s testimony denied this fact. Unless the decision in Garrette is wrong, the majority decision in this case must be in error, for I am unable to rationally distinguish the two decisions.

I would, therefore, follow Garrette and reverse for the erroneous admission of the similar fact evidence. Such error is presumed to be harmful, and since the only evidence competently connecting the appellant to the marijuana found in his camera case is the testimony of Trooper Stalworth (Torres denied that any of the drug was in his case), the error cannot be treated as harmless. See Garrette. 
      
      . Trooper Stalworth testified, when identifying the marijuana supposedly taken from the camera case, he was "not positive” that it came from that case, but that "the only thing I am certain about is the marijuana came from that vehicle.” He maintained, however, that he did find marijuana in the camera bag (R. 47-48).
     