ANTHONY LUTHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Luther was convicted of selling cocaine within 1,000 feet of a public housing facility under Florida law. The appellate court reversed the conviction on the enhanced charge because the State failed to prove the location was a public housing facility, but remanded for conviction on the necessarily lesser included offense of simple cocaine sale.
The State failed to prove the essential element that the sale occurred within 1,000 feet of a public housing facility. Therefore, the conviction for the enhanced offense must be reversed and remanded for adjudication of guilt on the necessarily lesser included offense of simple cocaine sale.
[1] A conviction for selling drugs within 1,000 feet of a public housing facility requires proof that the location was indeed a public housing facility.
[2] Failure to prove an essential element of a charged offense may warrant a judgment of acquittal on that specific charge.
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Join FLexlaw to unlock all legal intelligence“The State failed to prove that the location where the drugs were sold was a public housing facility. The trial court, therefore, erred in failing to grant the defendant's motion for judgment of acquittal on that ground.”
Establishes the core holding that the State's proof was insufficient for the enhanced offense element
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Join FLexlaw to unlock all legal intelligenceLuther was charged with selling cocaine within 1,000 feet of a public housing facility under section 893.13(1)(f), Florida Statutes. At trial, the Sta…
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The defendant, Anthony Luther, was convicted pursuant to section 893.13(l)(f), Florida Statutes (2009), of selling cocaine within 1,000 feet of a public housing facility. We agree with Luther that the State failed to prove that the location where the drugs were sold was a public housing facility. The trial court, therefore, erred in failing to grant the defendant’s motion for judgment of acquittal on that ground.1
Accordingly, we reverse Luther’s conviction for selling cocaine within 1,000 feet of a public housing facility and remand with instructions to the trial court to adjudicate Luther guilty of selling cocaine, a necessarily lesser included offense, and to resentence him accordingly. See § 924.34, Fla. Stat. (2009);2 Paige v. State, 641 So.2d 179 (Fla. 5th DCA 1994) (reversing conviction for possession of cocaine with intent to sell within 200 feet of a public housing facility because the statute was unconstitutionally vague; remanding with instructions to enter a judgment for simple possession of cocaine with intent to sell); see also Cox v. State, 764 So.2d 711, 713 (Fla. 1st DCA 2000) (“Therefore, we conclude the state failed to prove an essential element of the charged offense, i.e., that the offense was committed within 1,000 feet of a school. Since the state proved appellant committed the offense of sale of cocaine, the conviction for sale of cocaine within 1,000 feet of a school must be vacated and remanded with directions to enter a judgment of conviction and sentence for sale of cocaine, in accordance with the provisions of section 924.34, Florida Statutes.”).
AFFIRMED in part, REVERSED in part, and REMANDED.
SAWAYA, LAWSON and JACOBUS, JJ., concur.
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Citator
Cited By
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ASH v. State, 200 So. 3d 183 (Fla. 5th DCA 2016)…cility. He argues that the trial court erred in denying his motion for judgment of acquit [*184] tal because the State did not prove that the property near which he sold the controlled substance was a public housing facility, citing Luther v. State, 68 So. 3d 384, 385 (Fla. 5th DCA 2011). Although the appellant in Luther successfully raised the same issue on appeal, the Luther opinion is of little precedential value because it did not discuss in any detail the evidence presented at that trial. In this case,…
Authorities Cited
- State v. Sigler, 967 So. 2d 835 (Fla. 2007)
- COX v. State, 764 So. 2d 711 (Fla. 1st DCA 2000)
- Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994)