State v. Holmes

811 So. 2d 955, 2002 WL 227327
Louisiana Court of Appeal·Decided February 15, 2002·No. 2001 KA 0955·Published·Cited by 4 cases

Opinion

811 So.2d 955 (2002)

STATE of Louisiana
v.
Jeffery Mark HOLMES.

No. 2001 KA 0955.

Court of Appeal of Louisiana, First Circuit.

February 15, 2002.

*956 Walter P. Reed, District Attorney, Covington, Dorothy Pendergast, Metairie, Counsel for Appellee State of Louisiana.

Margaret Smith Sollars, Thibodaux, Counsel for Defendant-Appellant Jeffery M. Holmes.

Before: GONZALES, KUHN, and CIACCIO[1], JJ.

KUHN, J.

Defendant, Jeffery Mark Holmes, was charged with distribution of cocaine, a Schedule II controlled dangerous substance, in a drug free zone in violation of La. R.S. 40:981.3 and 40:967A(1). He initially pled not guilty and filed a motion to quash the bill of information. After a hearing, the trial judge denied the motion to quash. Thereafter, defendant withdrew his plea of not guilty and pled guilty, reserving his right to appeal the ruling on the motion to quash pursuant to State v. Crosby, 338 So.2d 584 (La.1976).[2] After a Boykin examination, the trial court accepted defendant's plea. The trial court sentenced defendant to fifteen years at hard labor, without benefit of parole.

FACTS

Because there was no trial, the record does not provide factual information about the offense. At the time of the plea, however, the prosecutor and defense attorney stipulated that a factual basis existed for the charge and the trial court accepted the stipulation. The bill of information indicates that the offense took place in Tammany Trace, a recreational park in St. Tammany Parish.

In his sole assignment of error, defendant contends that the statute under which he was charged, La. R.S. 40:981.3, was unconstitutionally vague "as written" and "as applied." Specifically, he contends that Tammany Trace is a recreational park rather than property used for school purposes and, thus, does not fall within the areas addressed by and defined in the statute. He further argues that the legislature did not intend to include government-owned recreational areas *957 that are not part of school property and are not specifically addressed in a separate subsection of the statute as are drug treatment, religious, and public housing authority buildings and facilities.

The State argues that the language of the statute is not vague and that the legislature clearly intended to include parks and recreational areas not "identified with or adjacent to schools." In support of its argument, the State notes that the statute does not limit the definition of school property to school playgrounds; rather, it includes "any building or area owned by the state or a political subdivision that is used as a playground or recreational facility" and "all parks and recreational areas administered by the office of state parks."

Initially, we note that in his motion to quash, defendant does not specifically state that he is challenging the constitutionality of the statute. Rather, he contends that the bill of information fails to charge him with an offense punishable under a valid statute. His specific argument is that Tammany Trace, while a recreation park area, is clearly not property used for school purposes by any school.

Generally, in order to preserve an alleged error for consideration on appeal, the Louisiana Code of Criminal Procedure requires that an objection be made to the irregularity at the time of its occurrence. La.Code Crim. P. art. 841. The Louisiana Supreme Court has dispensed with the necessity for objection in those cases where an attack is on the facial constitutionality of the statute. State v. Lee, 364 So.2d 1024, 1030, n. 4 (La.1978). Although defendant did not challenge the constitutionality of La. R.S. 40:981.3 in the proceedings below, we consider his challenge now because he attacks the statute on its face.

La. R.S. 40:981.3 currently states, in pertinent part:

A. (1) Any person who violates a felony provision of R.S. 40:966 through R.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E.
(2) Any person who violates a felony provision of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A) while on property used as a drug treatment facility or within one thousand feet of any such property, when included within an area marked as a drug free zone pursuant to R.S. 40:1058.10 shall, upon conviction, be punished in accordance with Subsection E.
(3)(a) Any person who violates a felony provision of R.S. 40:966 through R.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any religious building property, public housing authority property, or within one thousand feet of any such property, if the area is posted as a drug-free zone, shall, upon conviction, be punished in accordance with Subsection E of this Section.
(b) In order for the provisions of this Section to apply to religious buildings or to public housing authority property, the building must be posted as a drug-free zone as provided herein. The design and posting of the signs shall be at the discretion of the entity that owns or has authority over the religious building or public housing authority property. In order to post the area as a drug-free zone, the signs shall be located in a visible manner on or near each religious building or public housing authority property indicating that such area is a drug-free zone, that such zone extends for a distance of one thousand feet, and *958 that a felony violation of the Uniform Controlled Dangerous Substances Law will subject the offender to severe penalties under law.
B. Lack of knowledge that the prohibited act occurred on or within one thousand feet of school or drug treatment facility property shall not be a defense.
C. For purposes of this Section:
(1) "School" means any public or private elementary, secondary, vocational-technical school, or any public or private college or university in Louisiana.
(2) "School property" means all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks.
(3) "Drug treatment facility" means all property used for diagnostic, treatment, and rehabilitative services to patients and their families with problems related to alcohol, drug, or substance abuse.
(4) "Religious building property" means property on which is located any church, synagogue, mosque, or other building, structure, or place used for religious worship or other religious purpose.
(5) "Public housing authority property" means all property owned or operated by a public housing authority or agency created by state law or by any ordinance enacted by a local governing authority.
D. A violation of this Section within one thousand feet of school property, a drug treatment facility, religious building property, or public housing authority property shall not include an act which occurs entirely within a private residence wherein no person seventeen years of age or under was present.

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State v. Holmes, 811 So. 2d 955, 2002 WL 227327 (La. Ct. App. 2002).

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