State v. Burch

545 So. 2d 279, 1989 WL 9141
CourtDistrict Court of Appeal of Florida
DecidedFebruary 8, 1989
Docket88-0904, 88-0930
StatusPublished
Cited by70 cases

This text of 545 So. 2d 279 (State v. Burch) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burch, 545 So. 2d 279, 1989 WL 9141 (Fla. Ct. App. 1989).

Opinion

545 So.2d 279 (1989)

STATE of Florida, Appellant,
v.
Stacy BURCH, Appellee.
STATE of Florida, Appellant,
v.
Kenny Mike BROWN, Appellee.

Nos. 88-0904, 88-0930.

District Court of Appeal of Florida, Fourth District.

February 8, 1989.

*280 Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellees.

LETTS, Judge.

We are concerned here with two defendants, one charged with selling, and the other with purchasing, cocaine within one thousand feet of a school, contrary to section 893.13(1)(e) Florida Statutes (1987). The trial judge granted a motion to dismiss declaring the legislation to be unconstitutional because "the statute ... as written is vague and overbroad and the application of the statute is an abuse of police power which fails to follow the legislative intent in that the [police] have set up reverse-sting operations with officers posing as drug sellers or buyers ... after school hours and in residential neighborhoods." We conclude that the trial judge was in error and reverse.

The statute in question provides as follows:

(e) Except as authorized by this chapter, it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell, purchase, manufacture, or deliver, a controlled substance in, on or within one thousand feet of the real property comprising a public or private elementary, middle, or secondary school. Any person who violates this paragraph with respect to:
1. A controlled substance named or described in section 893.03(1)(a), (1)(b)(1)(d), (2)(a), or (2)(b) is guilty of a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.
2. A controlled substance named or described in section 893.03(1)(c), (2)(c), (3), or (4) is guilty of a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.

We begin our analysis with a quote from our supreme court's opinion in State v. Kinner, 398 So.2d 1360, 1363 (Fla. 1981), which held there is a "strong presumption in favor of the constitutionality of statutes. It is well established that all doubt will be resolved in favor of the constitutionality of a statute ... and that an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt." In our opinion, the statute sub judice is not invalid beyond a reasonable doubt.

*281 THE STATUTE IS NOT FACIALLY VIOLATIVE OF THE DUE PROCESS CLAUSE AS VAGUE AND OVERBROAD

As to this argument, we first dispose of the question of overbreadth holding that it is inapplicable here. The overbreadth doctrine applies only to conduct protected by the first amendment. Southeastern Fisheries Assoc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984). As the state aptly points out in its brief, the defendants "did not and could not reasonably contend that [their] conduct in purchasing [selling] cocaine within one thousand feet of a school was protected by the first amendment." We agree.

Addressing next the question of vagueness, it appears that a vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement. Southeastern Fisheries. The defendants suggest that this particular statute is vague because it does not put a person of reasonable intelligence on notice as to how to measure the distance between the location of the drug transaction and the "real property comprising a public or private elementary, middle or secondary school."

This argument was met and disposed of by the Second Circuit in United States v. Agilar, 779 F.2d 123, 126 (2nd Cir.1985), cert. denied, 475 U.S. 1068, 106 S.Ct. 1385, 89 L.Ed.2d 609 (1986):

Appellant's final due process challenge alleges that the one thousand foot demarcation line is not sufficiently ascertainable by the average person. Since the statute is violated whether or not the seller knows he is within the prohibited zone ... this argument has no force. And since there is no protected right to sell narcotics anywhere, there need be no concern for the person who removes his selling activity a considerable distance from a school in order to avoid the risk of being within the one thousand foot zone.

Furthermore, the Second Circuit, in another case, rejected the proposition that the state would have to prove that the defendants knew they were within one thousand feet of a school. United States v. Ofarril, 779 F.2d 791 (2nd Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986). We agree. Statutory sexual battery does not require the state to prove that the defendant knew the age of the minor. Ignorance as to the age of the victim is no excuse. See section 794.02, Florida Statutes (1987). Likewise, we are of the opinion that ignorance of the distance to a schoolyard is no excuse. The instant legislation has as its obvious and laudable purpose the curtailment of drug dealing near schools where children congregate and we see no reason why the one thousand foot distance requirement should not reasonably be measured in a straight line to the school property's nearest boundary line (i.e., as the crow flies). To suggest that the distance should be calculated by some circuitous pedestrian route would be a tortuous reading of the statute that would violate its plain intent and meaning. Ofarril, 779 F.2d at 792.

ENTRAPMENT BY REVERSE STING

The trial judge held that the defendants were entrapped as a matter of law by the conduct of the police in selling/purchasing cocaine within one thousand feet of a school during the evening hours.

Section 777.201, Florida Statute (1987) states:

Entrapment. —
(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if he proves by a preponderance *282 of the evidence that his criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

To demonstrate that no entrapment occurred sub judice, the state relies upon Cruz v. State, 465 So.2d 516, 522 (Fla. 1985), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), wherein the supreme court stated:

[Objective] entrapment has not

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tucker v. Liebknecht
86 So. 3d 1240 (District Court of Appeal of Florida, 2012)
Dickerson v. State
783 So. 2d 1144 (District Court of Appeal of Florida, 2001)
Glover v. State
771 So. 2d 1226 (District Court of Appeal of Florida, 2000)
Howard v. State
674 So. 2d 933 (District Court of Appeal of Florida, 1996)
State v. Maldonado
645 A.2d 1165 (Supreme Court of New Jersey, 1994)
Division of Administrative Hearings v. School Board of Collier County
634 So. 2d 1127 (District Court of Appeal of Florida, 1994)
Brown v. State
629 So. 2d 841 (Supreme Court of Florida, 1994)
Stamps v. State
620 So. 2d 1033 (District Court of Appeal of Florida, 1993)
State v. Caminiti
613 So. 2d 141 (District Court of Appeal of Florida, 1993)
State v. Wheeler
845 S.W.2d 678 (Missouri Court of Appeals, 1993)
State v. Coria
839 P.2d 890 (Washington Supreme Court, 1992)
Scates v. State
603 So. 2d 504 (Supreme Court of Florida, 1992)
Hale v. State
600 So. 2d 1228 (District Court of Appeal of Florida, 1992)
Kelly v. State
593 So. 2d 1060 (District Court of Appeal of Florida, 1992)
State v. Edwards
581 So. 2d 232 (District Court of Appeal of Florida, 1991)
Williford v. State
571 N.E.2d 310 (Indiana Court of Appeals, 1991)
Philips v. State
578 So. 2d 40 (District Court of Appeal of Florida, 1991)
State v. Nelson
577 So. 2d 971 (District Court of Appeal of Florida, 1991)
Krajewski v. State
587 So. 2d 1175 (District Court of Appeal of Florida, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
545 So. 2d 279, 1989 WL 9141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burch-fladistctapp-1989.