ERIC LEE HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed conviction for sale of cocaine within 200 feet of public housing facility because the statute's "public housing facility" provision is unconstitutionally vague, but affirmed conviction for simple possession of cocaine.
The "public housing facility" provision in section 893.13(l)(i), Florida Statutes, is unconstitutionally void for vagueness and cannot support a conviction for sale of cocaine within 200 feet of such a facility.
[1] The "public housing facility" provision in section 893.13(l)(i), Florida Statutes, is unconstitutionally void for vagueness because it fails to define the term "public ho…
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Join FLexlaw to unlock all legal intelligenceHarris was charged with sale of cocaine within 200 feet of a public housing facility and possession of cocaine. He filed a motion to dismiss alleging …
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PER CURIAM.
Eric Lee Harris (Appellant) was charged by information with the sale of a controlled substance (cocaine) within 200 feet of a public housing facility (Count I), in violation of section 893.13(l)(i), Florida Statutes; and with possession of cocaine (Count II), in violation of section 893.13(l)(f), Florida Statutes. He filed a motion to dismiss information alleging, inter alia, the unconstitutional vagueness of subsection (l)(i) for failure to define “public housing facility.” The motion was denied. In a subsequent plea of nolo contendere, Appellant expressly reserved the right to appeal denial of the motion to dismiss. He was adjudicated guilty as charged and received concurrent sentences of 5½ years for the two offenses.
In accordance with the recent pronouncement in Brown v. State, 629 So. 2d 841, 842 n. 1 (Fla.1994), that the “public housing facility” provision in section 893.13(l)(i), Florida Statutes, is unconstitutionally void for vagueness, we reverse the plea, conviction, and sentence as to Count I and remand with directions for the trial court to enter a conviction for the lesser-included offense of sale of cocaine. § 924.34, Fla.Stat.; Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994). We do not disturb the judgment and sentence for possession of cocaine.
AFFIRMED in part, REVERSED and REMANDED in part, with directions.
BOOTH, MICKLE and VAN NORTWICK, JJ., concur.
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Citator
Cited By
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Pratt v. State, 668 So. 2d 1007 (Fla. 1st DCA 1996)…luding our own) have applied this statute also “to eases in which convictions had to be set aside because they were based on statutes later determined to be unconstitutional.” Paige v. State, 641 So. 2d 179, 181 (Fla. 5th DCA 1994); Harris v. State, 649 So. 2d 923 (Fla. 1st DCA 1995); Golden v. State, 578 So. 2d 480 (Fla. 2d DCA 1991). In Paige, the defendant was convicted of possession of cocaine with intent to sell within 200 feet of a public housing facility. Subsequently, the Florida Supreme Court in Brow…
Authorities Cited
- Brown v. State, 629 So. 2d 841 (Fla. 1994)
- Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994)