Brevil v. State

• Citation: 326 So.3d 1129
• Decision Date: 11 August 2021
• Docket Number: Nos. 4D19-3010,4D19-3011,s. 4D19-3010
• Parties: Liferson BREVIL, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

326 So.3d 1129

Liferson BREVIL, Appellant,

v.STATE of Florida, Appellee.

Nos. 4D19-3010

4D19-3011

District Court of Appeal of Florida, Fourth District.

[August 11, 2021]

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.

Ciklin, J. Liferson Brevil challenges his convictions and sentences in two cases for sale of cocaine and sale of heroin, which charges were enhanced because both sales occurred within 1,000 feet of a licensed child care facility. Brevil went to trial in one case and pled guilty in the other.

In the case that proceeded to trial, we hold the trial court erred in denying Brevil's motion for judgment of acquittal because the evidence supporting his defense—that the child care facility did not have a statutorily-required sign identifying it as a "licensed" child care facility, or words to that effect—was undisputed and did not present a factual issue for the jury. Thus, in that case, we reverse for the trial court to reduce the convictions to the lesser sales charges and thereafter to resentence Brevil.

With respect to the case for which Brevil pled guilty, we reject his argument that the trial court fundamentally erred in accepting his plea on the basis that without the statutorily-required sign, no crime existed. Thus, we affirm that judgment, but remand for resentencing.

Trial Case

In the first case, Brevil proceeded to trial, and the evidence established he sold cocaine and heroin to an undercover officer within 1,000 feet of a child care facility, a preschool. Signs were posted at the preschool, and photographs of those signs were entered into evidence. One sign consisted of large light-up letters that spelled "PRESCHOOL." Another sign contained the name of the preschool and what appears to be a cartoon-type drawing. In the photograph, the bottom of the sign was obscured by bushes. A third sign contained the name of the preschool, which included the word "Preschool," a telephone number, and the words, "Register Now." In the photograph, other language appeared at the bottom of the sign, but the language was unclear. The state does not dispute Brevil's assertion that none of the signs included the phrase "licensed child care facility" or any other language indicating the preschool was licensed.

At the end of the state's case-in-chief and the close of all evidence, Brevil's counsel moved for a judgment of acquittal on the ground that "there's been no evidence that there was proper signage indicating that this was a licensed childcare facility." The trial court denied the motion, and the jury found Brevil guilty as charged.

On appeal, Brevil argues the trial court should have granted his motion for judgment of acquittal in the case that went to trial, as "there was no evidence that the signs said anything about whether [the preschool] is licensed, and the photos show that the signs did not say that."

A trial court's ruling on a motion for judgment of acquittal is reviewed de novo. Harris v. State , 289 So. 3d 962, 965 (Fla. 4th DCA 2020). "Generally, an appellate court will not reverse a conviction that is supported by competent substantial evidence." Id. (quoting Johnston v. State , 863 So. 2d 271, 283 (Fla. 2003) ). "In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the [State] that may be fairly and reasonably inferred from the evidence." Id. (alteration in original) (quoting Turner v. State , 29 So. 3d 361, 364 (Fla. 4th DCA 2010) ).

Brevil was charged with a violation of section 893.13(1)(c), Florida Statutes (2018), which provides in pertinent part:

(c) Except as authorized by this chapter, a person may not sell ... or possess with intent to sell ... a controlled substance in, on, or within 1,000 feet of the real property comprising a child care facility as defined in s. 402.302 .... A person who violates this paragraph with respect to:

1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5. commits a felony of the first degree ....

....

This paragraph does not apply to a child care facility unless the owner or operator of the facility posts a sign that is not less than 2 square feet in size with a word legend identifying the facility as a licensed child care facility and that is posted on the property of the child care facility in a conspicuous place where the sign is reasonably visible to the public.

§ 893.13(1)(c), Fla. Stat. (2018) (emphases added).

Brevil does not dispute that the sale occurred within 1,000 feet of a child care facility or that the signs were the size specified in the statute and posted on the property in a conspicuous place. His argument focuses on whether the signs contained a word legend identifying the preschool as a licensed child care facility, or words to that effect.

In denying Brevil's motion, the trial court relied on Williams v. State , 845 So. 2d 987 (Fla. 1st DCA 2003), a case cited by the state on appeal. In that case, the appellant moved for a judgment of acquittal arguing that the sign posted at the child care facility was insufficient, as it did not have "a word legend identifying the facility as a licensed child care facility." Id. at 988. The sign contained text that read:

Episcopal Children's Services Inc.PECKHEAD START CENTER904-261-9010 LIC# 043777

Id. The trial court in that case denied the motion for judgment of acquittal. Id. On appeal, the First District affirmed the conviction, observing that "evidence was introduced as to the location, size, and wording of the sign." Id. at 989. The court opined that the statute does not require "the sign to include specific ‘magic words.’ " Id. "Rather, the statute requires that language of the sign must be sufficient to place a reasonable person on notice that the facility is a licensed child care facility." Id. The appellate court found sufficient evidence existed to establish a prima facie case. Id. It also observed that the "evidence presented a question of fact for the jury as to whether the wording of the sign adequately identified the facility as a licensed childcare facility." Id.

Judge Larry G. Smith dissented in part. He opined that the issue before the court was one of law rather than a factual dispute:

There was no dispute below as to the wording of the sign or whether a sign was, in fact, in place. Had a dispute as to such issues existed below, then a factual question would have been presented for the jury to resolve. However, because there was no dispute as to the existence or the nature of the sign, a question of law was presented to the trial court as to whether the sign complied with the statutory requirement that it contain a "word legend identifying the facility as a licensed child care facility in a conspicuous place ...." § 8[9]3.13(1)(c)1., Fla. Stat. (2000) .... That is, the motion for a judgment of acquittal presented a question of law as to whether the evidence regarding the wording of the sign was sufficient to support a conviction.

Id . at 989–90 (Smith, J., dissenting in part).

Opining that the evidence was not sufficient, Judge Smith explained his interpretation of the statute:

When called to construe a statute, the court must first consider the language of that statute, and if the language is unambiguous, it must be regarded as conclusive, absent a clearly expressed contrary legislative intent. Burris v. State , 825 So. 2d 1034, 1036 (Fla. 5th DCA 2002), citingRussello v. United States , 464 U.S. 16, 20, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). Also, as required by section 775.021(1), Florida Statutes (2000), a strict construction must be accorded a penal statute, and when the language of the statute is susceptible of more than one construction, it is to be construed in a manner favorable to the accused. The supreme court has explained:

One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter. This principle ultimately rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited. Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.

Perkins v. State , 576 So. 2d 1310, 1312 (Fla. 1991) (citations omitted).

Id . at 990.

Judge Smith then employed a strict construction analysis and determined "the sign does not meet the requirement of section 8[9]3.13(1)(c)1[.] that it identify the facility in question as a ‘child care facility.’ " Id. He explained, "[t]he words ‘HEAD START CENTER’ do not unambiguously mean that a child care facility is being operated at that location[,]" since ‘ "Head Start’ is a federally funded program which provides ‘comprehensive health, educational, nutritional, social and other services to economically disadvantaged children and their families.’ " Id. (citation omitted). He further explained that "[t]he reference to ‘Children's Services’ denotes a myriad of possible activities and services, and thus, such a reference ... fails to specifically identify the structure as a licensed child care facility ...." Id.

We agree with Judge Smith's analysis in Williams . Applying strict construction, section 893.13(1)(c) requires that the sign contain language identifying the facility as a licensed child care facility. Here, that was nonexistent. Even accepting the Williams ’ majority's holding that section 893.13(1)(c) does not require "the sign to include specific ‘magic words[,]’ " here the sign included no words which would "be sufficient to place a reasonable person on notice that the facility is a licensed child care facility." Id. at 989. Consequently, the trial court erred in denying Brevil's motion for judgment of acquittal.

The state asserts that the placement of the...