A.B. v. State

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

A.B., ) ) Appellant, ) ) v. ) Case No. 2D14-298 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed November 7, 2014.

Appeal from the Circuit Court for Hillsborough County; Debra K. Behnke, Judge.

Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Chief Judge.

A.B. challenges the withhold of his adjudication and his placement on

juvenile probation after he was found to have committed the delinquent act of delivering cocaine within 1000 feet of a church. Because the trial court erred in denying the

motion for judgment of dismissal, we reverse.

A.B. was arrested after he was alleged to have sold drugs to an

undercover officer. The transaction was recorded, and the video was produced at the

delinquency hearing. Although there was some dispute regarding identity at the

hearing, the facts surrounding the sale itself are essentially undisputed, and only the

question of whether the State established that the delivery of the cocaine occurred

within 1000 feet of a church remains at issue.

At the hearing, a detective prepared and provided a scaled visual image of

the location of the drug transaction and testified regarding his computer-based

calculations of the distance between the transaction site and the church. According to

his measurements, the New Jerusalem Haitian Baptist Church is located between 700

and 800 feet from the place where the sale occurred. He testified that he had never

been inside the building but that he had been to the location and that it was a church,

looked like a church, and held itself out to be a church through its outside signage.

Defense counsel's objection to this testimony based on a lack of personal knowledge

was overruled. At the close of the State's case, defense counsel moved for a judgment

of dismissal, claiming that the State failed to present sufficient prima facie evidence to

support the requisite statutory element that regularly conducted religious services were

held at the church building located within 1000 feet of the delivery of the cocaine. The

trial court denied the motion, and A.B. now challenges that ruling on appeal.

Section 893.13(1)(e), Florida Statutes (2011), provides that "it is unlawful

for any person to sell, manufacture, or deliver . . . a controlled substance not authorized

-2- by law in, on, or within 1,000 feet of a physical place for worship at which a church or

religious organization regularly conducts religious services." (Emphasis added.) In the

instant case, the testimony of the detective did not establish that the church building

was a physical place of worship at which religious services are regularly conducted. As

such, the trial court erred in denying A.B.'s motion for judgment of dismissal. See

Moore v. State, 18 So. 3d 715, 716 (Fla. 2d DCA 2009) ("In the timeframe when the

offense occurred, the officer in this case could not provide evidence that the church was

regularly conducting religious services."); see also Hill v. State, 830 So. 2d 876 (Fla. 5th

DCA 2002) (reversing conviction for sale within 1000 feet of a place of worship where

officer had attended a program in the church but could not offer testimony regarding

whether services were regularly conducted there); Wallace v. State, 814 So. 2d 1255,

1257 (Fla. 5th DCA 2002) (concluding that State failed to establish statutory elements of

offense where officer "merely testified that he was aware (in some fashion) that services

'go on' in these two named churches, but there [wa]s no specification as to whether

these services [we]re religious in nature or how often they occur[red]"); cf. McHolder v.

State, 917 So. 2d 1043, 1046 (Fla. 5th DCA 2006) ("[T]he State sufficiently proved the

sale occurred within [1000 feet of a place of worship] and that religious services [we]re

regularly conducted. . . . [The officer] indicated that this church conducted regular

worship services as he had observed people entering and leaving the church on

Sunday mornings in their church attire at regular times. In addition, [the officer] testified

that he had visited the House of God Church. He indicated that he often observed

vehicles parked behind the church and persons in suits and dresses going in and out of

-3- the church at regular times. Moreover, photographs of the church and a church sign

listing the times and days of worship were admitted as evidence.").

We accordingly reverse the disposition finding that A.B. delivered cocaine

within 1000 feet of a church and remand for the entry of a disposition based on the

necessarily lesser-included offense of delivery of cocaine. See Moore, 18 So. 3d at

716.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., Concur.

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