Jamarol D. Fletcher v. State of Florida , 168 So. 3d 330 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JAMAROL D. FLETCHER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3874
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 8, 2015.
An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.
Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney
General, Tallahassee, for Appellee.
BILBREY, J.
Appellant Jamarol Donnell Fletcher challenges his convictions and
sentences for possession of cocaine within 1,000 feet of a church and possession of
cocaine with intent to sell and within 1,000 feet of a church arguing, in part, the
trial court erred in denying his motion for a judgment of acquittal made as to both
counts. He also argues that the trial court erred in admitting a photograph offered
by the State. We hold the trial court did not abuse its discretion in admitting the
photograph as more probative than prejudicial and deny relief as to that issue
without further comment. As for the denial of the motion for a judgment of
acquittal, we hold that the trial court erred in finding that the State sufficiently
proved that the offenses were committed within 1,000 feet of a church which
regularly conducted religious services at the time of the offense. In all other
respects, the denial of the motion for a judgment of acquittal is affirmed.
Appellant was arrested following a police surveillance of an area of
downtown Jacksonville. Very near the location of the drug transaction for which
appellant was arrested was a church, Mt. Zion AME Church, and at trial, a trustee
of that church was asked by the prosecutor:
Q. And does the church conduct regular religious services?
A. Yes, it does.
Q. How often would you say you conduct those services?
A. We have Sunday School, church school every Sunday, and then we
have religious services of church services every Sunday.
No other evidence was offered regarding the activities of the church. Appellant’s
trial took place approximately six months after appellant’s arrest.
Section 893.13(1)(e), Florida Statutes (2014), provides that it is unlawful for
any person to sell, manufacture, or deliver, or possess with intent to sell,
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manufacture or deliver, “a controlled substance not authorized 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. . . .” This statute has been
construed to require the State to prove at trial that regular religious services were
being held at the time of the offense. See Wilder v. State, 147 So. 3d 673 (Fla. 4th
DCA 2014); Moore v. State, 18 So. 3d 715 (Fla. 2d DCA 2009); Wallace v. State,
814 So. 2d 1255 (Fla. 5th DCA 2002). See also A.B. v. State, 150 So. 3d 883 (Fla.
2d DCA 2014); Hill v. State, 830 So. 2d 876 (Fla. 5th DCA 2002). Cf. McHolder
v. State, 917 So. 2d 1043 (Fla. 5th DCA 2006) (holding the State sufficiently
proved a sale occurred within 1,000 feet of a place of worship and that religious
services were regularly conducted when the officer testified this church conducted
regular worship services as he had observed people entering and leaving the church
on Sunday mornings in church attire at regular times and when photographs of the
church and a church sign listing the times and days of worship were admitted as
evidence).
This Court has held similarly with regard to a companion statute, section
893.13(1)(c), Florida Statutes (1999), which prohibits the sale, manufacture,
delivery or possession of contraband within 1,000 feet of a school. Cox v. State,
764 So. 2d 711 (Fla. 1st DCA 2000) (holding the State was required to prove the
site of the drug sale was a school when the offense took place and evidence that it
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was a school two years earlier was insufficient). As the Florida Supreme Court has
reaffirmed, “[i]t is a basic rule of statutory construction that statutes that are penal
in nature must be strictly construed, and the conduct of the accused must fall
plainly and unmistakably within the criminal statute to justify a conviction.”
Greenwade v. State, 124 So. 3d 215, 228 (Fla. 2013).
Here, the testimony that church services were held at the time of trial is not
evidence of regularly conducted religious services at the time of the offense.
Accordingly, we reverse the convictions and sentences for sale of cocaine within
1,000 feet of a church and possession with intent to sell within 1,000 feet of a
church. Further, we remand this cause with directions to enter convictions for sale
of cocaine and possession of cocaine with intent to sell and to impose sentence
pursuant to a corrected judgment and scoresheet. In all other respects, the trial
court's rulings are affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED.
WOLF and WETHERELL, JJ., CONCUR.
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