Stamps v. State
| Decision Date | 28 May 1993 |
| Docket Number | No. 92-00943,92-00943 |
| Citation | 620 So.2d 1033 |
| Parties | 84 Ed. Law Rep. 598, 18 Fla. L. Week. D1351 Leonard Johnson STAMPS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert N. Toward, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carl R. Hayes, Asst. Atty. Gen., Tampa, for appellee.
Defendant appeals his conviction and sentence for the purchase of cocaine within 1,000 feet of a school, in violation of section 893.13(1)(e), Florida Statutes (1991). We reverse.
Defendant, arguing that the trial court erred in denying his motion for judgment of acquittal, contends that the tract within 1,000 feet of which expert testimony of a surveyor showed defendant's purchase was made did not consist of "real property comprising a ... school" under section 893.13(1)(e). Defendant further contends that the tract was used only as an overflow parking lot and was separated from the school itself by a soccer field. We would affirm if the evidence would have permitted the jury to infer that defendant's cocaine purchase was made within 1,000 feet of the "boundaries" of the school, that is, within 1,000 feet of the school area consisting of contiguous tracts owned by the school, none of which were separated from one another by any intervening tract having a different owner. See Lyon v. State, 591 So.2d 1107 (Fla. 4th DCA 1992).
However, our review of the record establishes the lack of an evidentiary basis for such an inference. At best, the evidence merely shows that the purchase was made within 1,000 feet of a parking lot owned by the school. Under the rule of lenity applied to criminal statutes, section 775.021(1), it is not sufficient that the school "own" the property. Rather, the property must "comprise" the school. The two terms are not synonymous.
Thus, we reverse defendant's conviction under section 893.13(1)(e). Pursuant to section 924.34 we direct the trial court on remand to enter judgment for the lesser-included offense of purchase of cocaine.
In light of our disposition as to defendant's conviction, we need not address his remaining point on appeal concerning the mandatory minimum sentence he had received as resentencing for the lesser-included offense is now required.
Reversed and remanded for proceedings consistent herewith.
On July 24, 1991, the Lakeland Police Department assigned an undercover officer to sell cocaine at the Unitah Apartments. Those apartments are near a remote parking lot of the Lakeland Christian School. By early July, however, the school had finished its summer session. The officer sold cocaine to fourteen people that day. Leonard Stamps bought one twenty-dollar piece of cocaine from the police at 9:10 p.m.
At that time, Mr. Stamps was thirty-three years old. He had a wife and a four-year-old son. He had a good job as a drywall installer. He had no prior criminal record. If he had been charged with purchase of cocaine, the sentencing guidelines would have permitted no greater penalty than probation. Because he was arrested by the police and prosecuted by the state attorney under the school rule, he was sentenced to a three-year minimum mandatory term of imprisonment. See Sec. 893.13(1)(e), Fla.Stat. (1991).
Prior to sentencing, the Department of Corrections conducted a presentence investigation. Mr. Stamps admitted that he needed help with a drug problem that developed in the year preceding this arrest. The probation officer who prepared the presentence investigation recognized the existence of the minimum mandatory sentence, but nevertheless recommended a term of probation with drug rehabilitation. 1
In light of our decision, it is unfortunate that the trial court denied Mr. Stamps' motion for posttrial release pending appeal. He has now spent over a year in prison at considerable expense to the taxpayers. Undoubtedly his family has suffered a great financial and emotional burden. It would seem that the criminal justice system could have better spent its resources on drug rehabilitation.
This is not the first time that such a questionable sting operation has occurred in Polk County. See State v. Regan, 564 So.2d 1208 (Fla.2d DCA 1990). From my perspective, it is unfortunate that law enforcement in Polk County continues to use the school rule, not for the valid purposes intended by the legislature, but as a trap for unwary cocaine addicts. It is regrettable for at least three reasons.
First, it raises serious issues of due process and entrapment. Mr. Stamps had a predisposition to purchase cocaine. I am not suggesting that the police entrapped him into that basic offense. The police, however, enticed him into a location which they hoped would result in an enhanced penalty for this offense. There is nothing in the record to suggest that Mr. Stamps had a predisposition to purchase at that location, or that he had any reason to think that this summer evening transaction impacted on school activities. 2 If there is a concept of entrapment for an enhanced penalty, it should apply to this case. Due process demands fundamental fairness from law enforcement, and such fairness seems lacking in this undercover operation.
Second, this sting operation does not appear to be an expenditure of tax dollars in accordance with the policies established by the legislature. It seems obvious that the legislature intends...
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People v. Lowe
...field house was real property comprising the high school." He asks us to deem persuasive two out-of-state cases, Stamps v. State , 620 So. 2d 1033 (Fla. Dist. Ct. App. 1993), and State v. Peterson , 490 N.W.2d 53 (Iowa 1992), relevant to land contiguity issues in deciding school real proper......
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McKinney v. State
...at least one opinion in which Lakeland Christian School was the school relied upon for purposes of this statute. Stamps v. State, 620 So.2d 1033 (Fla. 2d DCA 1993). We recognize that a judge cannot use sections 90.202(11) and (12) to take notice of matters known to the judge, as compared to......
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Cox v. State, 1D99-2737.
...in which Lakeland Christian School had been the school relied upon for a conviction under section 893.13(1)(c). See Stamps v. State, 620 So.2d 1033 (Fla. 2d DCA 1993). See McKinney, 640 So.2d at 1184. The court recognized that the status of the school had been established previously in anot......
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Commonwealth v. Paige
...not separated from each other by any intervening tract not under the control of the local school authority. Cf. Stamps v. State, 620 So. 2d 1033, 1033 (Fla. Dist. Ct. App. 1993). 6 The defendant does not raise any issue concerning ownership of the real property, but the question presented t......