Cox v. State, No. 1D99-2737.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: JOANOS, J.
• Citation: 764 So.2d 711
• Parties: Anthony COX, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 19 June 2000
• Docket Number: No. 1D99-2737.

764 So.2d 711

Anthony COX, Appellant,
v.
STATE of Florida, Appellee

No. 1D99-2737.

District Court of Appeal of Florida, First District.

June 19, 2000.

James T. Miller, Jacksonville, for Appellant.

Robert A. Butterworth, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

JOANOS, J.

Appellant, Anthony Cox, appeals his conviction for the offense of sale of crack cocaine within 1000 feet of a school. The issues presented are whether the trial court erred in denying appellant's motion for judgment of acquittal as to the offense charged, and whether the trial court erred in denying appellant additional peremptory challenges. We affirm in part and reverse in part.

On January 12, 1999, appellant was charged in a two-count information with: Count I—sale, manufacture or delivery of a controlled substance within 1000 feet of a school, contrary to section 893.13(1)(c)1, Florida Statutes; and Count II—actual or constructive possession of cocaine contrary to the provisions of section 893.13(6)(a), Florida Statutes. The sale allegedly occurred December 8, 1998; the charge involving possession occurred December 21,

764 So.2d 712

1998. On January 12, 1999, the state served notice of intent to prosecute appellant as a career criminal. On February 17, 1999, the state filed notice of intent to classify appellant as an habitual felony offender. Thereafter, the trial court granted appellant's motion for severance of Counts I and II for trial. This appeal concerns only appellant's conviction of the Count I charge of sale of crack cocaine within 1000 feet of a school

During the jury selection process, appellant's counsel advised the trial court that he believed both the state and the defense were entitled to ten peremptory challenges, because appellant was subject to a sentence of life imprisonment by virtue of the habitual felony offender statute. The trial court indicated each side would have six challenges, unless either defense counsel or the prosecutor could produce legal authority to the contrary. When both sides had exhausted their peremptory challenges, defense counsel renewed his objection to the ruling which limited appellant to six peremptory challenges. Counsel urged that pursuant to the plain meaning of rule 3.350(a)(1), of the Florida Rules of Criminal Procedure, a defendant charged with an offense punishable by death or imprisonment for life is entitled to ten peremptory challenges during the jury selection process. The trial court adhered to its original ruling. In doing so, the court reasoned that appellant had been charged with a plain first-degree felony, and was subject to a life sentence only because of the habitual offender statute.

At trial, the state adduced evidence that appellant sold crack cocaine to undercover narcotics detectives. The state also adduced evidence that a structure known as the Academy of Excellence was located across the street at a distance of 137 feet from the area where the drug transaction took place. However, the state failed to adduce evidence which established that the Academy of Excellence was a school at the time of the subject offense.

We reject the state's assertion that the first issue was not preserved. Based upon our examination of the record, we conclude the issue raised on appeal was presented to, and was ruled upon, by the trial court. Thus, the issue is properly before us for review. The standard of review of a trial court's denial of a motion for judgment of acquittal is whether the trial court abused its discretion. See Lee v. State, 745 So.2d 1036, 1037 (Fla. 1st DCA 1999), citing Terry v. State, 668 So.2d 954 (Fla.1996).

The statute applicable, section 893.13(1)(c), Florida Statutes, provides in pertinent part:

(c) 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 in, on, or within 1,000 feet of the real property comprising a child care facility as defined in s. 402.302 or a public or private elementary, middle, or secondary school between the hours of 6 a.m. and 12 a.m....

It is incumbent upon the state to introduce competent evidence of each element of the offense charged. If the evidence of an element of the offense charged does not conform to the date of the offense alleged in the information, the defendant's motion for judgment of acquittal should be granted. See, generally, Audano v. State, 674 So.2d 882, 883 (Fla. 2d DCA 1996);...