SANDY ANTONIO MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sandy Antonio Moore appeals his conviction for possession of cocaine with intent to sell within 1,000 feet of a church. The court reversed the conviction and remanded for entry of judgment on the lesser-included offense of possession with intent to sell, finding insufficient evidence that the church was regularly conducting religious services at the time of the offense.
The court reversed the conviction on the first-degree felony charge because the police officer's testimony was insufficient to establish that the church was regularly conducting religious services at the time of the offense. The court remanded for entry of judgment on the necessarily lesser-included offense of possession with intent to sell cocaine, a second-degree felony.
[1] Proof that a place of worship regularly conducts religious services requires more than testimony that services "go on" or that the witness was aware of "church services."
[2] A conviction for selling a controlled substance within 1,000 feet of a place of worship requires proof beyond a reasonable doubt that the place of worship regularly condu…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes that precedent controls the outcome and that the officer's testimony was insufficient as a matter of law
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Join FLexlaw to unlock all legal intelligenceOn October 30, 2007, a Winter Haven police officer witnessed Moore selling cocaine to another man on Sears Avenue, located around the corner from New …
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Sandy Antonio Moore appeals his judgment and sentence for possession of cocaine with intent to sell within one thousand feet of a church. We reverse the judgment and remand for entry of a judgment for the lesser-included offense of possession of cocaine with intent to sell. The reversal requires that we also reverse the sentence and remand for resentencing.
A Winter Haven police officer witnessed Mr. Moore selling cocaine to another man on Sears Avenue on October 30, 2007. This location is around the corner from the New Hope Missionary Baptist Church. The State anticipated calling a witness from the church to testify about services at the church, but the witness did not attend the trial. As a result, the only witness available to testify for the State about the church was the police officer. He was able to state that he had seen people coming and going from the church on Sundays, but he had last seen this activity a year before this offense.
Section 893.13(l)(e), Florida Statutes (2007), provides that it is a first-degree felony to sell cocaine within one thousand feet of “a physical place of worship at which a church or religious organization regularly conducts religious services.” We acknowledge that a police officer with sufficient familiarity with a particular church can provide evidence that it is regularly conducting services even when the officer does not attend those services. See 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 could not provide evidence that the church was regularly conducting religious services.
Accordingly, we reverse the judgment and sentence for this first-degree felony and remand for entry of a judgment and sentence for the necessarily lesser-included offense of possession with intent to sell cocaine, which is a second-degree felony. See § 893.13(1)(a)(1), Fla. Stat. (2007); see also Tribbitt v. State, 984 So.2d 624, 626 n. 2 (Fla. 2d DCA 2008).
Reversed.
CASANUEVA, C.J., and WHATLEY, J., Concur.
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Citator
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Jamarol D. Fletcher v. State, 168 So. 3d 330 (Fla. 1st DCA 2015)…cts 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) (hold…
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Wilder v. State, 147 So. 3d 673 (Fla. 4th DCA 2014)…rly conducts religious services.” Thus, to convict a defendant of such offense, the State must present evidence establishing that, during the timeframe when the offense occurred, religious services were regularly being conducted. See Moore v. State, 18 So. 3d 715 (Fla. 2d DCA 2009) (holding evidence insufficient to convict defendant of possession of cocaine with intent to sell within 1,000 feet of a church, where officer testified he had seen people coming and going from the church on Sundays, but officer la…
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A.B. v. State, 150 So. 3d 883 (Fla. 2d DCA 2014)…y of the detective did not establish that the church building was a physical place of worship at which religious services are regularly conducted. As such, the trial court erred in denying A.B.’s motion for judgment of dismissal. See Moore v. State, 18 So. 3d 715, 716 (Fla. 2d DCA 2009) (“In the timeframe when the offense occurred, the officer in this case could not provide evidence that the church was regularly conducting religious services.”); see also Hill v. State, 830 So. 2d 876 (Fla. 5th DCA 2002) (rev…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wallace v. State, 814 So. 2d 1255 (Fla. 5th DCA 2002)
- McHOLDER v. State, 917 So. 2d 1043 (Fla. 5th DCA 2006)
- Kenta S. Hill v. State, 830 So. 2d 876 (Fla. 5th DCA 2002)
- Tribbitt v. State, 984 So. 2d 624 (Fla. 2d DCA 2008)