author: KELLUM, Judge.

text:
    Robert Swan SIERCKS v. STATE of Alabama.
    CR-12-0874.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.

      Jamie Morgan Stephens, Huntsville, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   KELLUM, Judge.

Robert Swan Siercks was convicted of unlawful possession of a controlled substance, cocaine, see § 13A-12-212, Ala. Code 1975. He was sentenced, as a habitual offender with three prior felony convictions, to 15 years’ imprisonment.

The evidence adduced at trial indicated the following. On November 18, 2011, around 3 p.m., Steven Graham, a patrol officer and field-training officer with the Huntsville Police Department, and Christopher Edwards, a rookie patrol officer with the Huntsville Police Department, were on patrol when Officer Graham saw a 1992 Oldsmobile automobile stopped at a traffic light at an intersection. The driver of the vehicle was not wearing a seatbelt. When the traffic light turned green, Officer Graham followed the vehicle, turned on his emergency lights, and executed a traffic stop. When the vehicle stopped, the officers got out of the patrol car and Officer Graham approached the driver’s side of the vehicle, while Officer Edwards approached the passenger side. Siercks was driving the vehicle and a woman was in the front passenger seat.

Officer Graham asked Siercks for his driver’s license, vehicle registration, and insurance information. Siercks informed Officer Graham that he had no identification with him. The female passenger also said that she had no identification with her. Officer Graham stated that he then asked Siercks to get out of the vehicle. According to Officer Graham, it is standard procedure to detain a vehicle occupant who has no identification until the occupant’s identity can be determined. The female passenger was also asked to get out of the vehicle.

When Siercks opened the driver’s side door and started to get out of the vehicle, Officer Graham saw “in plain view between the door and the driver’s seat ... a small white rock of cocaine.” (R. 94.) Graham then conducted a patdown of Siercks, handcuffed Siercks, and put Siercks in the back of his patrol car. After Siercks was secured, Officer Graham pointed out to Officer Edwards the location of the white rock, confiscated the rock, and radioed for narcotics officers to come to the scene. Subsequently, Officer Graham conducted a field test on the white rock. Based on the results of the field test, Officer Graham arrested Siercks for possession of cocaine. Officer Graham also wrote Siercks a traffic ticket for failing to wear a seatbelt. Because no illegal narcotics were found on the passenger side of the vehicle, the female passenger was released. Officer Graham testified that he determined that the vehicle Siercks was driving was registered to a woman named Sally Hawkins, who lived at 8834 Melody Road, the same address where Siercks lived.

Although the rock was later submitted to the Alabama Department of Forensic Sciences (“DFS”) for testing, no evidence was presented regarding the results of that testing. However, Officer Graham testified that he had been a police officer since 2007 and that he had made some 500 drug arrests during his career, including approximately 200 arrests involving cocaine. Officer Graham said that in addition to his training at the police academy, he had attended a four-day training class involving drug detection generally as well as a week-long training class dedicated to methamphetamine. Officer Graham stated that the Huntsville Police Department has a procedure for submitting confiscated narcotics to DFS and that, in none of the approximately 200 arrests for cocaine he had made in his career, did DFS return a report indicating that the substance was • not cocaine. Based on his experience, Officer Graham said, it was immediately apparent to him that the white rock he found in the vehicle driven by Siercks was crack cocaine. Officer Graham also identified the rock he confiscated at trial, and the rock was introduced into evidence by the defense.

On cross-examination, Officer Graham stated that he did not notice Siercks or the female passenger make any strange movements as he was executing the traffic stop and that there was nothing that would have stopped Siercks from throwing the rock into the backseat before he stopped the vehicle. Officer Graham also said that when he patted Siercks down he did not find any narcotics on his person. Officer Graham stated that he did not question either Siercks or the female passenger about the rock of cocaine he found but that the narcotics officer who came to the scene “did all that.” (R. 116.)

Officer Edwards testified that he observed Officer Graham approach the driver’s side of the vehicle, get Siercks out of the vehicle, and pat Siercks down. After Siercks was detained, Officer Edwards went to the driver’s side of the vehicle and saw “[w]hat appeared to be a rock of crack cocaine ... next to the driver’s seat in between the seat and the window.” (R. 180.) Officer Edwards admitted that the traffic stop of Siercks occurred only one week after he had graduated from the police academy, but he said that he had been trained in the police academy to iden- ' tify narcotics, including crack cocaine. Officer Edwards said that, even as a rookie, he had no doubt that the substance in the vehicle was crack cocaine.

. After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Siercks of unlawful possession of cocaine as charged in the indictment. This appeal followed.

I.

On appeal, Siercks contends that the trial court erred in denying his motion for a judgment of acquittal made at the close of the State’s case and his motion for a new trial because, he says, the evidence was insufficient to sustain his conviction. Specifically, Siercks argues, as he did at trial, that the State failed to prove: (1) that the substance seized from the vehicle was, in fact, cocaine; and (2) that he was in constructive possession of the cocaine.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So.2d 493 (Ala. 1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App. 1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “men there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App. 1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Gavin v. State, 891 So.2d 907, 974 (Ala. Crim.App.2003).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“‘[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):
“ ‘ “Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words,
“ ““ ... the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.’ Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).”
“‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.’ McGlamory, 441 F.2d at 135 and 136.”
Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978).

A.

First, Siercks argues that the State failed to prove that the substance seized from the vehicle was cocaine. While recognizing that scientific testing is not necessarily required to establish the nature of a controlled substance, Siercks nonetheless argues that in this case scientific testing was required to prove that the substance was cocaine because, he says, Officer Graham and Officer Edwards lacked sufficient experience with crack cocaine to positively identify the substance and their testimony identifying the substance as crack cocaine, even when coupled with the fact that the substance was field-tested, was therefore not sufficient to prove that it was, in fact, cocaine. We disagree.

“Alabama has never required direct proof that a substance is a controlled substance to sustain a drug conviction.” Wallace v. State, 130 So.3d 212, 218 (Ala.Crim. App.2013). “This Court has upheld convictions for possession of a controlled substance despite a lack of scientific testing where a witness who confiscated or took possession of the substance testified to having sufficient knowledge or expertise to identify the substance.” J.M.A. v. State, 74 So.3d 487, 493 (Ala.Crim.App.2011) (citing Hanks v. State, 562 So.2d 536, 540 (Ala.Crim.App.1989), rev’d on other grounds, 562 So.2d 540 (Ala.1989); Headley v. State, 720 So.2d 996, 998 (Ala.Crim. App.1998); and Powell v. State, 804 So.2d 1167, 1170 (Ala.Crim.App.2001)). As this Court explained in Wallace:

‘““The law is quite clear that the introduction of a chemical analysis of the substance is not essential to conviction.... The narcotic nature of the substance need not be proved by direct evidence if the circumstantial evidence presented established ... that beyond a reasonable doubt the substance was [cocaine]. [Citations omitted.]”
‘United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); see United States v. Leavitt, 878 F.2d 1329, 1336 (11th Cir.), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984), cert. denied, 469 U.S. 1164, 105 S.Ct. 923, 83 L.Ed.2d 935 (1985); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). The law of this circuit takes the expansive view that the identification of a controlled substance can be established by such circumstantial evidence as “lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use, such as testing, weighing, cutting and peculiar ingestion.” Harrell, 737 F.2d at 978. Additionally, this court has recognized that “the uncorroborated testimony of a person who observed a defendant in possession of a controlled substance is sufficient if the person is familiar with the substance at issue.” Zielie, 734 F.2d at 1456; see United States v. Rodriguez-Arevalo, 734 F.2d 612, 616 (11th Cir.1984); United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984).’
“United States v. Baggett, 954 F.2d 674, 677 (11th Cir.1992).
“ ‘Illegal drugs will often be unavailable for scientific analysis because their nature is to be consumed. As a practical matter, therefore, the evi-dentiary rule urged by [the appellant] would insulate from prosecution a large class of unlawful acts involving illicit drugs when the government happens upon the scene too late to seize a sample of the substance. To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug-related offense, and we too are unwilling to announce such a rule. In view of the limitations that such a burden would place on prosecutors, and in accordance with general evidentiary principles, courts have held that the government may establish the identity of a drug through cumulative circumstantial evidence. See, e.g., United States v. Osgood, 794 F.2d 1087, 1095 (5th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986); [United States u] Harrell, 737 F.2d [971] 978-79 [ (11th Cir.1984) ]. So long as the government produces sufficient evidence, direct or circumstantial, from which the jury is able to identify the substance beyond a reasonable doubt, the lack of scientific evidence is not objectionable. Cf. Osgood, 794 F.2d at 1095; Harrell, 737 F.2d at 978.’
“United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988).”

130 So.3d at 212.

In this case, both Officer Graham and Officer Edwards positively identified the substance found in the vehicle as crack cocaine. Although Officer Edwards had limited experience with crack cocaine, Officer Graham had made approximately 200 arrests involving cocaine, and in none of those approximately 200 arrests did DFS return a report indicating that the substance was not cocaine. Additionally, Officer Graham conducted a field test on the substance. Although Officer Graham did not specifically testify as to the results of the field test, when asked if he arrested Siercks for possession of cocaine based on the results of the field test, Officer Graham answered in the affirmative, thus creating the reasonable inference that the substance tested positive for cocaine. The testimony of Officer Graham and Officer Edwards identifying the substance as crack cocaine coupled -with the fact that the substance field-tested positive for cocaine was sufficient for a rational jury to conclude that the substance was, in fact, crack cocaine. See, e.g., Riddle v. State, 267 Ga.App. 630, 632-33, 600 S.E.2d 709, 711 (2004) (holding that testimony of police officer identifying substance as crack cocaine coupled with positive field test was sufficient to warrant sending the case to the jury on the issue whether the substance was, in fact, cocaine). Therefore, the trial court properly denied Siercks’s motion for a judgment of acquittal and his motion for a new trial on this ground.

B.

Second, Siercks argues that the State failed to prove that he was in constructive possession of the crack cocaine. Specifically, he argues that his presence in and nonexclusive possession of the vehicle in which the cocaine was found were not sufficient circumstances, alone, to establish his constructive possession of the cocaine.

“Possession, whether actual or constructive, has the following three attributes: (1) ‘[A]ctual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.’ ” Wallace v. State, 690 So.2d 534, 536 (Ala.Crim.App.1996) (quoting Radke v. State, 52 AlaApp. 397, 398, 293 So.2d 312, 313 (1973), aff'd, 292 Ala. 290, 293 So.2d 314 (1974)).

“ ‘When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State, [439 So.2d 718 (Ala. Cr.App.), rev’d on other grounds, 439 So.2d 723 (Ala.1983) ]; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 721 (Ala.Cr. App.1981). This knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). When the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App. 1986); Temple v. State, [366 So.2d at 743]. While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Grubbs v. State, 462 So.2d 995, (Ala.Cr.App.1984); Temple v. State.’
“Robinette v. State, 531 So.2d 682, 686 (Ala.Cr.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988).
“In Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), this court provided a non-exclusive list of circumstances that may establish a connection between a defendant and the contraband found on the defendant’s property when the defendant is not in exclusive possession of the premises.
“ ‘While the kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case, 56 A.L.R.3d 948 (1974), it has generally been stated that:
“ ‘ “The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant’s person or with his personal effects; (6) evidence which shows' that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.
“ ‘ “The kinds of evidence which might be relevant, but which by themselves do not add the necessary connection are: (1) admissions of previous use; (2) conduct that might be construed as evidencing a consciousness of guilt which was not displayed upon the defendant’s confrontation of the possibility that an illicit drug would be discovered; (3) evidence of previous use; (4) evidence that showed the defendant’s physical proximity to the contraband.”
“ ‘9 Land and Water L.Rev. 236, 248-49 (1974).’
366 So.2d at 743.”

Posey v. State, 736 So.2d 656, 658-59 (Ala. Crim.App.1997).

Neither the mere presence of the accused in an automobile in which a controlled substance is found nor the accused’s close proximity to the controlled substance is sufficient, alone or together, to establish the knowledge necessary for constructive possession. See, e.g., Ex parte Story, 435 So.2d 1365, 1366 (Ala. 1983) (“[T]he mere presence of a defendant in an automobile containing contraband is not sufficient in and of itself to support a conviction for possession of a controlled substance.”); and T.L.S. v. State, 153 So.3d 829, 838 (Ala.Crim.App. 2013) (“Mere proximity to the controlled substance is insufficient to support a conviction.”). However, “[p]roximity to illegal drugs, presence on the property where they are located, or mere association with persons who do control the drugs may be sufficient to support a finding of possession when accompanied with testimony connecting the accused with the incriminating surrounding circumstances.” German v. State, 429 So.2d 1138, 1142 (Ala.Crim. App.1982).

Viewed in the light most favorable to the State, the evidence in this case established that Siercks was driving a vehicle in which crack cocaine was found. Although Siercks was not the owner of the vehicle, he was driving the vehicle, and the vehicle was registered to a woman who lived at the same address as Siercks, thus indicating that Siercks had access to and dominion and control over the vehicle, which supports an inference of constructive possession. See, e.g., Laakkonen v. State, 21 So.3d 1261, 1266 (Ala.Crim.App.2008) (“ ‘Constructive possession of contraband may be shown by proof of dominion and control over a vehicle containing contraband.’ ”) (quoting United States v. Clark, 732 F.2d 1536, 1540 (11th Cir.1984)); and Ward v. State, 484 So.2d 536, 537-38 (Ala. Crim.App.1985) (“The driver of an automobile is generally considered to be in control of it. An inference of constructive possession, therefore, exists.”). Additionally, although Siercks was not alone in the vehicle, the crack cocaine was found in plain view on the floor between the driver’s seat, where Siercks was sitting, and the driver’s side door, a location easily accessible by Siercks and over which Siercks, as the driver of the vehicle, had substantial control. See, e.g., Lewis v. State, 741 So.2d 452, 455 (Ala.Crim.App.1999) (“Evidence indicating that the pistol was in plain view and that it was easily accessible by Lewis, was sufficient to allow the jury to infer that Lewis had knowledge and was in constructive possession of the pistol at the time of his arrest.”).

Under these circumstances, we conclude that there was sufficient evidence from which the jury could have reasonably concluded that Siercks had constructive possession of the crack cocaine. Therefore, the trial court properly denied Siercks’s motion for a judgment of acquittal and his motion for a new trial on this ground.

II.

Although we affirm Siercks’s conviction for unlawful, possession of a controlled substance, we must remand this case for the trial court to impose the appropriate fines pursuant to § 13A-12-281, Ala.Code 1975, and § 36-18-7(a), Ala.Code 1975. At the sentencing hearing, and in its sentencing order, the trial court stated that all fines associated with Siercks’s conviction were waived on the basis of Siercks’s indigency.

Section 13A-12-281 (the Demand Reduction Assessment Act) mandates that every person convicted of a violation of any offense defined in §§ 13A-12-202, -203, -204, -211, -212, -213, -215, or -231, Ala. Code 1975, “shall be assessed for each such offense an additional penalty fixed at $1,000 for first offenders and $2,000 for second and subsequent offenders.” (Emphasis added.) Section 36-18-7(a) (the Alabama Forensic Services Trust Fund), mandates that “there shall be imposed or assessed an additional fee of one hundred dollars ($100) on any conviction in any court of the state for drug possession, drug sale, drug trafficking, and drug paraphernalia offense[s] as defined in Sections 13A-12-211 to 13A-12-260, inclusive.” (Emphasis added.) The fines in §§ 13A-12-281 and 36-18-7(a) are not waivable. They are mandatory and jurisdictional, and the failure to impose them renders a sentence illegal. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala. Crim.App.1994), and we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482, 484 (Ala. Crim.App.1999).

Based on the foregoing, we affirm Siercks’s conviction for unlawful possession of a controlled substance, but we remand this case for the trial court to impose the appropriate fines pursuant to §§ 13A-12-281 and 36-18-7(a). Due return shall be filed within 28 days of the date of this opinion and shall include the trial court’s amended sentencing order.

AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

      . Officer Graham stated that the four-day training class was “street level HIDTA.” (R. 90.) However, Officer Graham could not remember what the acronym "HIDTA” stood for.

      . We note that Siercks does not challenge on appeal the admissibility of the testimony of Officer Graham or Officer Edwards in which they identified the substance as crack cocaine or of Officer Graham’s testimony regarding his field-testing of the cocaine.

       Note from the reporter of decisions: On February 7, 2014, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On April 18, 2014, that court denied rehearing, without opinion.


source: Caselaw Access Project

author: MAIN, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Robert Swan Siercks. (In re Robert Swan SIERCKS v. STATE of Alabama).
    1130847.
    Supreme Court of Alabama.
    June 20, 2014.
    Jamie Morgan Stephens, Huntsville, for petitioner.
   MAIN, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, MURDOCK, SHAW, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

Robert Swan Siercks was stopped by police for a seatbelt violation. When Siercks was unable to produce any form of identification when requested to do so, an officer ordered him out of the vehicle. According to the Court of Criminal Appeals: ‘When Siercks opened the driver’s side door and started to get out of the vehicle, Officer [Steven] Graham saw ‘in plain view between the door and the driver’s seat ... a small white rock of cocaine.’ ” Siercks v. State, 154 So.3d 1085, 1087 (Ala.Crim.App. 2013). After field-testing the substance, Officer Graham arrested Siercks for unlawful possession of cocaine. When the jury returned a verdict of guilty, the trial court sentenced Siercks as a habitual felony offender to 15 years’ imprisonment. The Court of Criminal Appeals affirmed Siercks’s conviction and remanded the case for the trial court to impose fines it had waived on original sentencing. On return to remand, the Court of Criminal Appeals affirmed Siereks’s sentence by an unpublished memorandum. Siercks then filed this petition for certiorari review.

Although contraband located “between the door and the driver’s seat” may be in-“plain view” of a police officer once the driver’s door of a vehicle is opened, the driver may or may not have a line of sight into the crevice between the closed door and the left edge of the driver’s seat while operating the vehicle. If the seat wedges tightly against the closed door, an object “in plain view” when the driver’s door is open may be completely invisible and inaccessible to the driver when the door is closed. On the other hand, a gap of two inches or more between the left edge of the seat and the closed door would permit the driver easily to touch the object with his hand. “When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances.” Robinette v. State, 531 So.2d 682, 686 (Ala.Crim.App. 1987). Such knowledge “may be inferred from the accused’s exclusive possession, ownership, and control of the premises” where the illegal substance is found. Id.

In this case Siercks was driving a vehicle registered to another person who lived at the same address as Siercks. Thus, Siercks did not have “exclusive possession, ownership, and control” of the vehicle. In the absence of exclusive possession of the premises, “knowledge [of the presence of the controlled substances] may not be inferred unless there are other circumstances tending to buttress this inference.” Robinette, 531 So.2d at 686. Although Siercks had potential physical control over the cocaine, the Court of Criminal Appeals did not identify any other behavior to connect him with the substance. He had no drugs on him; he did not act guilty; and he did not flee or admit possession.

I am not persuaded that the jury had before it sufficient evidence from which to conclude beyond a reasonable doubt that Siercks had knowledge of the presence of the small rock of cocaine that, though in proximity to his person, may not have been visible to him. Because I would grant Siercks’s petition for a writ of certiorari to examine the record as to the sufficiency of the evidence on the issue of constructive possession,1 respectfully dissent.

      . "Constructive possession is a legal fiction used by courts to find possession in situations where it does not in fact exist, but where they nevertheless want an individual to acquire the legal status of a possessor.” Charles H. Whi-tebread & Ronald Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va. L.Rev. 751, 761-62 (1972).


text:
    FLORIDA BOARD OF BAR EXAMINERS re D.L.D.
    No. SC14-1329.
    Supreme Court of Florida.
    Aug. 29, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and D.L.D. shall be admitted to The Florida Bar subject to the following conditions:

1. The Applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the Applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA by complying with the rehabilitation contract with that organization executed on March 28, 2013, and by extending the contract to cover the entire period of probation if necessary;
(d) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA;
(e) attend attorney suppoi't meetings at least monthly, or at such greater frequency as required by FLA; and
(f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to compliance with the conditions set forth in 2(a), (b), (c), (d), and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b), Rules Regulating The Florida Bar, and the costs thereof shall be paid by the Applicant to The Florida Bar or its designated monitpr-ing agency.

4. To monitor effectively the provisions in this agreement, the Applicant shall reside within Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the Applicant relocates outside Florida during the probationary period for any reason, the Applicant shall surrender her license to practice law in Florida and if the Applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. The Applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the Applicant’s practice of law.

6. If the Applicant’s license is surrendered or terminated during the probationary period, the Applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause by The Florida Bar as to conduct of the Applicant committed during the period of probation may terminate the probation and subject the Applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The Applicant shall have ten days to file a response. If no response is timely filed by the Applicant, then the Court shall issue an order suspending the Applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the Applicant.

8. If circumstances so warrant, it, the Applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the Applicant acknowledges that an uninterrupted period of documented sobriety for a' minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the Applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the Applicant specifically consents to and authorizes the release of any and all materials in the Applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


author: POLSTON, J.

text:
    TRAVELERS COMMERCIAL INSURANCE COMPANY, etc., Petitioner, v. Crystal Marie HARRINGTON, Respondent.
    No. SC12-1257.
    Supreme Court of Florida.
    Oct. 23, 2014.
    Rehearing Denied Jan. 7, 2015.

      James Paul Waczewski of Luks, Santan-iello, Petrillo, & Jones, Tallahassee, FL, and Raoul G. Cantero, III, and Maria Josefa Beguiristain of White & Case LLP, Miami, FL, for Petitioner.

      Stephen Charles Bullock and Christopher M. Costello of Brannon, Brown, Haley & Bullock, P.A., Lake City, FL, for Respondent.
    Cynthia Skelton Tunnieliff and Gerald Don Nelson Bryant, IV, of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, FL, for Amicus Curiae Personal Insurance Federation of Florida.
    Henry Gerome Gyden and Dorothy Venable DiFiore of Haas, Lewis, & DiFiore, P.A., Tampa, FL, for Amicus Curiae GEI-CO Insurance Company.
    Louis Kahn Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, FL, for Ami-cus Curiae The Florida Justice Association.
   POLSTON, J.

This case is before the Court for review of the First District Court of Appeal’s decision in Travelers Commercial Insurance Co. v. Harrington, 86 So.3d 1274 (Fla. 1st DCA 2012). In its decision the First District ruled upon the following questions, which the court certified to be of great public importance:

1. WHETHER THE FAMILY VEHICLE EXCLUSION FOR UNINSURED MOTORIST BENEFITS CONFLICTS WITH SECTION 627.727(3), FLORIDA STATUTES, WHEN THE EXCLUSION IS APPLIED TO A CLASS I INSURED WHO SEEKS SUCH BENEFITS IN CONNECTION WITH A SINGLE-VEHICLE ACCIDENT WHERE THE VEHICLE WAS BEING DRIVEN BY A CLASS II PERMISSIVE USER, AND WHERE THE DRIVER IS UN-DERINSURED AND LIABILITY PAYMENTS FROM THE DRIVER’S INSURER, WHEN COMBINED WITH LIABILITY PAYMENTS UNDER THE CLASS I INSURED’S POLICY, DO NOT FULLY COVER THE CLASS I INSURED’S MEDICAL COSTS.
2. WHETHER UNINSURED MOTORIST BENEFITS ARE STACKA-BLE UNDER SECTION 627.727(9), FLORIDA STATUTES, WHERE SUCH BENEFITS ARE CLAIMED BY AN INSURED POLICYHOLDER, AND WHERE A NON-STACKING ELECTION WAS MADE BY THE PURCHASER OF THE POLICY, BUT WHERE THE INSURED CLAIMANT DID NOT ELECT NON-STACKING BENEFITS.

Id. at 1278-79.

For the reasons explained below, we answer both certified questions in the negative and quash the First District’s decision. We conclude that a family vehicle exclusion in an automobile insurance policy, which excludes a family vehicle from the definition of an uninsured motor vehicle, does not conflict with section 627.727(3), Florida Statutes (2009). We also conclude that uninsured motorist (UM) benefits are not stackable under section 627.727(9) if the named insured or purchaser of the policy made a non-stacking election, as this waiver applies on behalf of all insureds under the policy.

BACKGROUND

On October 29, 2009, Crystal Harrington was injured in a single-car accident, while riding as a passenger in a car owned by her father, but driven with permission by a non-family member, Joey Williams. The vehicle was insured by Travelers Commercial Insurance Company (“Travelers”). Harrington’s mother was the named insured and the purchaser of the policy on the vehicle. The policy insured three vehicles and provided liability and non-stacked uninsured motorist coverage for Harrington, her mother, and her father. Specifically, the Harrington’s policy provided for bodily injury liability coverage of $100,000 per person and $300,000 per accident, and non-stacked UM coverage of $100,000 per person and $300,000 per accident. The policy defined the term “your covered auto” as any one of the three insured vehicles, which included the vehicle involved in the accident.

The driver, Joey Williams, had his own liability policy with Nationwide. Williams was also covered under the liability provisions of the Harrington’s policy because the policy defined an “insured” as the named insured, the named insured’s family, or any other person lawfully occupying the vehicle. Thus, Harrington was a class I insured and Williams was a class II insured.

After she was injured, Nationwide paid Harrington the $50,000 limit of Williams’ liability policy. This payment did not fully cover Harrington’s medical expenses, and Travelers also tendered its liability limit of $100,000. However, Harrington’s damages still exceeded the combined liability payments, and she subsequently sought UM benefits from Travelers. Travelers denied the claim on the ground that the vehicle was not an “uninsured motor vehicle” as defined in the policy.

Specifically, the policy’s definition of an “uninsured motor vehicle” included an “un-derinsured” vehicle, that is a vehicle to which a liability policy applies at the time of the accident but the amount paid under the policy is not enough to pay the full amount of the insured’s damages. However, the policy also contained a “family vehicle exclusion” which expressly provided that an uninsured vehicle does not include any vehicle:

Owned by or furnished or available for the regular use of you or a “family member” unless it is a “your covered auto” to which Coverage A of the policy applies and bodily injury liability coverage is excluded for any person other than you or any “family member” for damages sustained in the accident by you or any “family member[.]”

Therefore, the vehicle in question was excluded from UM coverage pursuant to this provision.

After Travelers denied her claim for UM benefits, Harrington sued Travelers, seeking payment of stacked UM benefits in the amount of $300,000, despite the fact that her mother, the named insured and purchaser of the policy, had expressly selected and paid for non-stacking UM coverage.

Before trial, both parties moved for summary judgment, and the trial court granted summary judgment in favor of Harrington, concluding that the policy provision excluding family vehicles from UM coverage was invalid because it conflicted with section 627.727(3)(b) and (c), Florida Statutes (2009). The trial court also concluded that the waiver executed by Harrington’s mother electing non-stacking UM coverage did not apply to Harrington because Travelers did not obtain a knowing acceptance of the limitation of non-stacking UM coverage from Harrington personally.

On appeal, the First District affirmed the trial court’s ruling-on both the coverage and stacking issues, but reversed the . amount of the UM benefits awarded and the attorney’s fees' awarded because “Travelers’ asserted other defenses which might impact the amount of the benéfits due under the policy.” Harrington, 86 So.3d at 1278. The First District then certified two questions of great public importance to this Court. Id. at 1278-79.

ANALYSIS

I. Whether the Family Vehicle Exclusion Conflicts With Section 627.727(3), Florida Statutes

The first question before us is whether the family vehicle exclusion for UM coverage conflicts with section 627.727(3), Florida Statutes (2009). More specifically, whether the exclusion conflicts with subsection (b) or (c) of section 627.727(3), when applied to a class I insured, injured in a car accident, who seeks UM benefits when the combined liability payments from the class II insured’s policy and the class I insured’s own policy do not fully cover the insured’s medical expenses. As explained below, we find that the exclusion does not conflict with either subsection.

A. Whether the Policy Exclusion Conflicts With Section 627.727(3)(b), Florida Statutes

Under Florida law, insurers are required to provide UM coverage for all vehicles insured for liability purposes, unless the insured expressly rejects UM coverage. See generally § 627.727(1), Fla. Stat. (2009). In enacting the UM statute, section 627.727, the Legislature intended “to provide for the broad protection of the citizens of this State against uninsured motorists.” Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1, 5 (Fla.1972). But, as originally enacted, “UM coverage came into play only when the offending owner or operator carried no liability -insurance whatsoever.” Shelby Mut. Ins. Co. v. Smith, 556 So.2d 393, 393 (Fla.1990). This meant that “the tortfeasor had to be completely uninsured before [UM] coverage was required to be applicable. Even if an accident victim’s recovery from the tortfea-sor’s insurer was less than his damages, the statute did not originally require uninsured vehicle coverage to be available for further compensation.” Williams v. Hartford Accident & Indem. Co., 382 So.2d 1216, 1218 (Fla.1980). However, in 1973, the Legislature created subsection 627.727(3)(b) (originally subsection 627.727(2)(b)) to provide UM coverage for underinsured tortfeasors as well. See Smith, 556 So.2d at 393-94; see also ch. 73-180, § 4, Laws of Fla. This subsection provides as follows:

(3) [T]he term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
(b) Has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages[.]

§ 627.727(3)(b), Fla. Stat. (2009).

Harrington argues, and the First District concluded, that the family vehicle exclusion in the Travelers policy is void because it conflicts with section 627.727(3)(b), which provides that underin-sured vehicles shall be considered uninsured for purposes of UM coverage, and that Harrington is entitled to both liability and UM benefits under the Travelers policy. See Harrington, 86 So.3d at 1276-77. We disagree.

While section 627.727(3)(b) provides that underinsured vehicles shall be considered uninsured for purposes of UM coverage, it also provides that the term uninsured motor vehicle is “subject to the terms and conditions of such coverage.” § 627.727(3)(b), Fla. Stat. And, an insurance “‘policy may contain other general conditions affecting coverage or exclusions on coverage’ as long as the limitations are unambiguous and ‘consistent with the purposes of the UM statute.’ ” Sommerville v. Allstate Ins. Co., 65 So.3d 558, 562 (Fla. 2d DCA 2011) (quoting Varro v. Federated Mut. Ins. Co., 854 So.2d 726, 728-29 (Fla. 2d DCA 2003)). Here, the terms and conditions of the insurance policy expressly and unambiguously excluded the vehicle in question from the definition of an “uninsured motor vehicle.” Thus, the family vehicle exclusion does not conflict with section 627.727(3)(b) because the statute clearly states that the term “uninsured motor vehicle” is subject to the terms and conditions of the policy.

Furthermore, we have historically upheld such policy definitions. See, e.g., Smith v. Valley Forge Ins. Co., 591 So.2d 926, 927 (Fla.1992) (holding that the insurance policy’s provision excluding “any vehicle that is ‘owned by or furnished or available for the regular use of you or any family member’ ” from the definition of an uninsured vehicle was valid and precluded the recovery of UM benefits); Reid v. State Farm Fire & Cas. Co., 352 So.2d 1172, 1173 (Fla.1977) (holding that a policy may exclude the vehicle it insures from the definition of an uninsured motor vehicle); see also Nationwide Mut. Fire Ins. Co. v. Olah, 662 So.2d 980, 982 (Fla. 2d DCA 1995) (reversing an award of UM benefits because the policy contained a valid exclusion limiting UM benefits to a vehicle not covered under the liability section of the policy); State Farm Mut. Auto. Ins. Co. v. McClure, 501 So.2d 141, 142-43 (Fla. 2d DCA 1987) (concluding that the policy definition of “uninsured motor vehicle” which excluded a vehicle insured under the liability portion of the policy was not void against public policy).

Moreover, as we explained in Travelers Insurance Co. v. Warren, 678 So.2d 324, 326-27 (Fla.1996), “section 627.727(3)(b) does not require a stacking of both liability and UM benefits under the same policy[,]” and section 627.727(3)(b) does not negate the effect of a policy’s “your car” exclusion. Although in Warren, we were addressing a claim by a class II insured seeking UM benefits as opposed to a class I insured like Harrington, this is not a material distinction. Indeed, the facts in Warren are virtually identical to the facts of this case and compel the same result.

Specifically, like Harrington, Dianna Warren was a passenger in a vehicle, insured by Travelers, that was involved in an accident that resulted in Warren’s death. Id. at 325-26. Similar to the case at hand, the Travelers policy in Warren contained a “your car” exclusion, which provided that the car insured under the policy was not an uninsured motor vehicle within the meaning of the policy. Id. at 326. Warren’s estate, like Harrington, collected the liability limits from Travelers and then sought to collect UM benefits from Travelers on the ground that the vehicle was underinsured because the damages exceeded the liability limits. Id.

The trial court granted summary judgment for Travelers on the basis of the policy’s exclusion, but the “[First District] reversed, concluding that section 627.727(3)(b)[,] overrode the insurance policy’s ‘y°ur car’ exception, thereby allowing [Warren’s] estate to recover both liability and UM benefits under the same policy.” Id. (footnote omitted). However, on review, a plurality of this Court quashed the First District’s decision, concluding that section 627.727(3)(b) did not negate the effect of the policy’s “your car” exclusion and “that the ‘liability insurer’ referred to in section 627.727(3)(b) means an insurer other than the insurer providing UM coverage to the claimant.” Id. at 327-28. Thus, given our holding in Warren, Harrington could not receive UM benefits under the Travelers policy because Travelers already paid out the liability limits. To hold otherwise would not only permit stacking of liability and UM coverages under the same policy, but it would also require treating a vehicle as both insured and uninsured under the same policy in contravention of a long line of well-established precedent. See, e.g., Reid, 352 So.2d at 1173-74 (holding that a vehicle cannot be both insured and uninsured under the same policy); Bulone v. United Servs. Auto. Ass’n, 660 So.2d 399, 400-02 (Fla. 2d DCA 1995) (explaining that the UM statute does not require an automobile policy to treat vehicles as both insured for purposes of liability coverage and uninsured for purposes of UM coverage); Allstate Ins. Co. v. Baker, 543 So.2d 847, 850 (Fla. 4th DCA 1989) (“[A] vehicle cannot be transformed from an insured vehicle into an uninsured vehicle simply because liability coverage was barred due to a valid enforceable household exclusion in the same policy[.]”).

Accordingly, we conclude that the family vehicle exclusion does not conflict with section 627.727(3)(b).

B. Whether the Exclusion Conflicts With Section 627.727(3)(c), Florida Statutes

The first certified question also requires us to consider whether the family vehicle exclusion conflicts with section 627.727(3)(c), Florida Statutes (2009). For the reasons explained below, we find that it does not.

Section 627.727(3)(c) provides UM coverage for an insured vehicle when the insurer excludes liability coverage for a non-family member, who while driving the insured vehicle, injures the named insured or the named insured’s family. Specifically, the statute provides as follows:

(3) For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:

(c) Excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured or to a relative of the named insured who is a member of the named insured’s household.

§ 627.727(3)(e), Fla. Stat. (2009) (emphasis added).

As we explained in Warren, 678 So.2d at 328, the Legislature created subsection (3)(c) to provide UM coverage when a non-family member’s operation of an insured family vehicle results in an injury to an insured and the insurer excludes liability coverage for the non-family member. The family vehicle exclusion here does not conflict with subsection (3)(c) because the liability policy does not exclude coverage for non-family members. Rather, the Harrington’s liability policy, consistent with the purposes of subsection (3)(c), covers any person who drives, with permission, any of the vehicles insured under the policy, and also provides that an insured vehicle is considered uninsured for purposes of UM coverage if the liability policy excludes coverage for non-family members whose operation of the vehicle cause injury to the named insured or the named insured’s family. Thus, there is no conflict. Furthermore, as we explained in Warren, 678 So.2d at 328, “section 627.727(3)(c) d[oes] not stack UM coverage on top of liability coverage under a single policy.”

Accordingly, we hold that the family vehicle exclusion does not conflict with section 627.727(3)(e), Florida Statutes (2009). We therefore answer the first certified question in the negative.

II. Stacking of UM Benefits Under Section 627.727(9),

Florida Statutes

The second certified question before us is whether UM benefits are stacka-ble under section 627.727(9), Florida Statutes (2009), when the named insured and purchaser of the policy expressly elected non-stacking UM coverage, but the insured claiming the UM benefits did not expressly make a non-stacking election. We answer this question in the negative and conclude that the coverage election made by the named insured is binding on behalf of all insureds under the policy.

While stacking of UM coverage is presumptive under Florida law, section 627.727(9) provides that an insurer may offer non-stacking coverage provided that the insurer informs the insured of the limitations of such coverage and the insured executes an approved form expressly electing non-stacking coverage. See generally § 627.727(9), Fla. Stat. (2009). In this ease, upon purchasing the policy, Harrington’s mother, the named insured, executed a coverage election form expressly electing non-stacking UM coverage and, as a result of this election, paid a corresponding lower insurance premium. The additional insureds under the policy, Harrington and her father, did not sign the form. Despite this election, the trial court and the First District concluded that the election of non-stacking coverage did not apply to Harrington because she did not personally sign the form waiving stacked UM coverage. Harrington, 86 So.3d at 1277.

In reaching this conclusion, the courts focused on the difference in the statutory language found in section 627.727(9) from that found in section 627.727(1), Florida Statutes (2009). Section 627.727(1) requires that UM coverage be provided with any liability policy in equal limits to the liability policy, unless the insured expressly rejects- the coverage or elects lower coverage limits by executing an approved form. § 627.727(1), Fla. Stat. This section further provides that “[i]f this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.” Id. (emphasis added). Similarly, section 627.727(9) requires that an election of non-stacking UM coverage be expressly made by executing an approved form and further provides that “[i]f this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations.” § 627.727(9), Fla. Stat. Because the phrase “on behalf of all insureds” is not present in subsection (9), the First District agreed with the trial court that the Legislature intended that “the subsection (9) waiver of stackable coverage must be personally made by the insured who claims such benefits.” Harrington, 86 So.3d at 1277. We disagree.

As a preliminary matter, we note that the First District did not have to resort to statutory interpretation in order to determine whether Harrington’s mother’s election of non-stacking coverage applied on behalf of all the insureds under the policy because the contract unambiguously stated that the coverage selection ápplied on behalf of all insureds under the policy. See, e.g., State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569 (Fla.2011) (“In interpreting an insurance contract, we are bound by the plain meaning of the contract’s text.”); V & M Erectors, Inc. v. Middlesex Corp., 867 So.2d 1252, 1253 (Fla. 4th DCA 2004) (“[W]here the contract [language] is clear and unambiguous there is no reason to go further.” (quoting Lab. Corp. of Am. v. McKown, 829 So.2d 311, 313 (Fla. 5th DCA 2002))); Gen. Sec. Ins. Co. v. Barrentine, 829 So.2d 980, 981-82 (Fla. 1st DCA 2002) (“If the language of an insurance policy is clear, it must be construed to mean what it says and nothing more. Courts have no power to create insurance coverage, if it does not otherwise exist by the terms of the policy.” (internal citations omitted)).

Nevertheless, the First District concluded that the Legislature did not intend for the named insured’s election to apply on behalf of all the insureds under the policy since, unlike in section 627.727(1), the Legislature did not expressly include the language “on behalf of all insureds” in the presumption clause in section 627.727(9). Under the First District’s interpretation, any insured under the policy, other than the named insured who signed the waiver, would be able to collect stacked UM benefits, despite the fact that the named insured affirmatively made a non-stacking election and paid a reduced premium based on this election. Not only would this put the additional insureds in a better position than the named insured — giving them a benefit they did not pay for — but it also prevents the insurer from receiving the “reduced liability risk” that they bargained for. See Acquesta v. Indus. Fire & Cas. Co., 467 So.2d 284, 285 (Fla.1985) (“[The insured] correctly expects the insurance company to be bound by the contract in all respects which are of benefit to him and the law will enforce those expectations. [Likewise, t]he insurer correctly expects [the insured] to be bound in all respects which are of benefit to it. More precisely, both are entitled to all they bargained and paid for.” (quoting Indus. Fire & Cas. Co. v. Acquesta, 448 So.2d 1122, 1123 (Fla. 4th DCA 1984))).

In addition, automobile insurers have never provided individualized UM coverage; instead, UM coverage premiums are calculated based on the coverage selected for the policy as whole. Yet, the First District’s interpretation creates the potential predicament that individuals under the same policy will elect both stacked and non-stacked UM benefits, making the calculation of a single UM premium impractical, as well as virtually impossible. See Cont’l Ins. Co. v. Roth, 388 So.2d 617, 618 (Fla. 3d DCA 1980) (“We envision no rational apportionment of the [UM] premium among named insureds, should some want the coverage, and others not; nor can we believe that it was the intention of the legislature, [the insurer], or the [insured], that a bargain for [UM] coverage be struck per capita, within each policy, rather than on a policy-by-policy basis.”).

Accordingly, we hold that a waiver executed by the named insured electing non-stacking UM coverage is binding on all insureds under the policy under section 627.727(9). We therefore answer the second certified question in the negative.

CONCLUSION

For the reasons explained above, we answer both certified questions in the negative and quash the First District’s decision.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . We apply a de novo standard of review to pure questions of law. See Rando v. Gov’t Emps. Ins. Co., 39 So.3d 244, 247 (Fla.2010).

      . Typically, automobile insurance policies recognize two, classes of insureds, Class I insureds and Class II insureds. "[C]lass I insureds are named insureds and resident relatives of named insureds.” Travelers Ins. Co. v. Warren, 678 So.2d 324, 326 n. 2 (Fla. 1996). Class II insureds are all other lawful occupants of an insured vehicle who are not the named insureds or a resident relative of the named insured; essentially, they are “third party beneficiaries to the named insureds’ policy.” Id.

      . Subsection (a), which provides that an insured vehicle may be treated as uninsured if the liability insurer "[i]s unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency,” is not at issue here. § 627.727(3)(a), Fla. Stat. (2009).

      . Specifically, the coverage election form stated that “I, on behalf of all insureds under the policy, understand and agree that selection of any of the. above options applies to my liability insurance policy and future renewals or replacements of such policy which are issued at the same Bodily Injury Liability Limits.”