DAVID LAMONT WALLACE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Wallace was convicted of selling cocaine within 1,000 feet of a place of worship under Florida law. The appellate court reversed because the prosecution failed to present sufficient evidence that the identified churches regularly conducted religious services, a required statutory element of the offense.
The court held that the prosecution failed to sufficiently prove that the named churches regularly conducted religious services. Garcia's vague testimony that he was aware services 'go on' without specifying whether services were religious in nature or how often they occurred was insufficient to establish this required element.
[1] A police officer's testimony regarding a church's regular religious services is insufficient to establish the element of a first-degree felony offense when the testimony…
[2] A conviction for selling cocaine within one thousand feet of a church requires proof that the church regularly conducts religious services.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Garcia's testimony, which the state relied upon in lieu of that of church members who failed to appear for trial, failed to establish that the named churches regularly conducted religious services.”
Establishes the core deficiency in the state's proof—the inability to prove a required statutory element through available evidence.
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Join FLexlaw to unlock all legal intelligenceWallace was arrested for sale and delivery of cocaine. At trial, the arresting officer Garcia testified that two churches were within 1,000 feet of th…
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COBB, J.
David Wallace appeals his conviction of sale and delivery of cocaine within 1,000 feet of a place of worship pursuant to sections 893.13(l)(e)l, Florida Statutes (2000), which provides:
(e) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, 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 or within 1,000 feet of a convenience business as defined in s. 812.171. Any person who violates this paragraph with respect to:
1. A controlled substance named or described in s. 893.03(l)(a), (l)(b), (l)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.093, or s. 775.084.
The testimony at trial by the arresting officer, Garcia, was as follows:
Q. Is there a church nearby?
A. Yes, two churches within a thousand feet.
Q. What are the names of the churches?
A. Hust Church; and the other one is the Church of God, located at 910 West Livingston.
Q. Both Christian based Churches?
A. I believe so.
Q. Have you ever attended services?
A. I have not.
Q. Are you aware if services go on?
A. Yes, sir. Q. Can you tell this jury, give an estimate of how far away the church is where you purchased the cocaine?
A. In this case if you look in the background you can actually see the church steeples so it’s less than a hundred feet on the intersection of Beech and Bentley on the Northwest Corner. Wallace argues on appeal that the foregoing colloquy was insufficient to establish all of the statutory elements of the crime for which he was convicted. There was no other testimony or evidence adduced by the state to sustain the charge. We agree that the state failed to sufficiently prove the statutory elements. Garcia’s testimony, which the state relied upon in lieu of that of church members who failed to appear for trial, failed to establish that the named churches regularly conducted religious services. Garcia merely testified that he was aware (in some fashion) that services “go on” in these two named churches, but there is no specification as to whether these services are religious in nature or how often they occur. The testimony in this case is in sharp contrast to that adduced in Jean v. State, 764 So. 2d 605 (Fla. 4th DCA 1999) wherein the officer testified there was a “regular church” which conducted nightly services as well as Sunday daytime masses.
REVERSED AND REMANDED for entry of judgment and sentence for the necessarily lesser included offense of sale of a controlled substance pursuant to section 893.13(l)(a)l, Florida Statutes (2000).
PALMER and ORFINGER, R.B., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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McHOLDER v. State, 917 So. 2d 1043 (Fla. 5th DCA 2006)…s services were regularly conducted at the church was more than sufficient to overcome any vagueness challenge to the statute). The facts of this case are distinguishable from Hill v. State, 830 So. 2d 876 (Fla. 5th DCA 2002), and Wallace v. State, 814 So. 2d 1255 (Fla. 5th DCA 2002), both relied on by McHolder. In Hill, the officer testified that he had personal knowledge that the church, located within 1,000 feet of where the drug transaction took place, had church services and was a place of worship. This…
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Kenta S. Hill v. State, 830 So. 2d 876 (Fla. 5th DCA 2002)…ever attended or observed services at the church, and offered no testimony as to how regularly these “church-services” occurred. Thus, Clay’s testimony failed to establish that the church regularly conducted religious services. See Wallace v. State, 814 So. 2d 1255 (Fla. 5th DCA 2002) (holding that arresting officer’s testimony that he was aware that services “go on” in a church was insufficient). Like any element of an offense, this element must be proved beyond a reasonable doubt. That was not done here. Fo…
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Moore v. State, 18 So. 3d 715 (Fla. 2d DCA 2009)…McHolder v. State, 917 So. 2d 1043, 1046-47 (Fla. 5th DCA 2006). Thus, it is not essential for the State to provide evidence from a church member or leader. Nevertheless, we conclude that this case is controlled by the decisions in Wallace v. State, 814 So. 2d 1255 (Fla. 5th DCA 2002), and Hill v. State, 830 So. 2d 876 (Fla. 5th DCA 2002), in which the testimony of police officers was insufficient to establish this element of the offense. In the timeframe when the offense occurred, the officer in this case cou…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- JPG Enters., Inc. v. Hampson, 764 So. 2d 605 (Fla. 4th DCA 1999)
- Jean v. State, 764 So. 2d 605 (Fla. 4th DCA 1999)