State v. Burch, Nos. 88-0904

CourtCourt of Appeal of Florida (US)
Writing for the CourtLETTS; WALDEN, J., and DAUKSCH, JAMES C., Jr.
Citation14 Fla. L. Weekly 382,545 So.2d 279
Parties54 Ed. Law Rep. 1037, 14 Fla. L. Weekly 382 STATE of Florida, Appellant, v. Stacy BURCH, Appellee. STATE of Florida, Appellant, v. Kenny Mike BROWN, Appellee.
Decision Date08 February 1989
Docket Number88-0930,Nos. 88-0904

Page 279

545 So.2d 279
54 Ed. Law Rep. 1037, 14 Fla. L. Weekly 382
STATE of Florida, Appellant,
v.
Stacy BURCH, Appellee.
STATE of Florida, Appellant,
v.
Kenny Mike BROWN, Appellee.
Nos. 88-0904, 88-0930.
District Court of Appeal of Florida,
Fourth District.
Feb. 8, 1989.

Page 280

Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellees.

LETTS, Judge.

We are concerned here with two defendants, one charged with selling, and the other with purchasing, cocaine within one thousand feet of a school, contrary to section 893.13(1)(e) Florida Statutes (1987). The trial judge granted a motion to dismiss declaring the legislation to be unconstitutional because "the statute ... as written is vague and overbroad and the application of the statute is an abuse of police power which fails to follow the legislative intent in that the [police] have set up reverse-sting operations with officers posing as drug sellers or buyers ... after school hours and in residential neighborhoods." We conclude that the trial judge was in error and reverse.

The statute in question provides as follows:

(e) Except as authorized by this chapter, it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell, purchase, manufacture, or deliver, a controlled substance in, on or within one thousand feet of the real property comprising a public or private elementary, middle, or secondary school. Any person who violates this paragraph with respect to:

1. A controlled substance named or described in section 893.03(1)(a), (1)(b)(1)(d), (2)(a), or (2)(b) is guilty of a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.

2. A controlled substance named or described in section 893.03(1)(c), (2)(c), (3), or (4) is guilty of a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.

We begin our analysis with a quote from our supreme court's opinion in State v. Kinner, 398 So.2d 1360, 1363 (Fla.1981), which held there is a "strong presumption in favor of the constitutionality of statutes. It is well established that all doubt will be resolved in favor of the constitutionality of a statute ... and that an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt." In our opinion, the statute sub judice is not invalid beyond a reasonable doubt.

Page 281

THE STATUTE IS NOT FACIALLY VIOLATIVE OF THE DUE PROCESS CLAUSE AS VAGUE AND OVERBROAD

As to this argument, we first dispose of the question of overbreadth holding that it is inapplicable here. The overbreadth doctrine applies only to conduct protected by the first amendment. Southeastern Fisheries Assoc. v. Department of Natural Resources, 453 So.2d 1351 (Fla.1984). As the state aptly points out in its brief, the defendants "did not and could not reasonably contend that [their] conduct in purchasing [selling] cocaine within one thousand feet of a school was protected by the first amendment." We agree.

Addressing next the question of vagueness, it appears that a vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement. Southeastern Fisheries. The defendants suggest that this particular statute is vague because it does not put a person of reasonable intelligence on notice as to how to measure the distance between the location of the drug transaction and the "real property comprising a public or private elementary, middle or secondary school."

This argument was met and disposed of by the Second Circuit in United States v. Agilar, 779 F.2d 123, 126 (2nd Cir.1985), cert. denied, 475 U.S. 1068, 106 S.Ct. 1385, 89 L.Ed.2d 609 (1986):

Appellant's final due process challenge alleges that the one thousand foot demarcation line is not sufficiently ascertainable by the average person. Since the statute is violated whether or not the seller knows he is within the prohibited zone ... this argument has no force. And since there is no protected right to sell narcotics anywhere, there need be no concern for the person who removes his selling activity a considerable distance from a school in order to avoid the risk of being within the one thousand foot zone.

Furthermore, the Second Circuit, in another case, rejected the proposition that the state would have to prove that the defendants knew they were within one thousand feet of a school. United States v. Ofarril, 779 F.2d 791 (2nd Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986). We agree. Statutory sexual battery does not require the state to prove that the defendant knew the age of the minor. Ignorance as to the age of the victim is no excuse. See section 794.02, Florida Statutes (1987). Likewise, we are of the opinion that ignorance of the distance to a schoolyard is no excuse. The instant legislation has as its obvious and laudable purpose the curtailment of drug dealing near schools where children congregate and we see no reason why the one thousand foot distance requirement should not reasonably be measured in a straight line to the school property's nearest boundary line (i.e., as the crow flies). To suggest that the distance should be calculated by some circuitous pedestrian route would be a tortuous reading of the statute that would violate its plain intent and meaning. Ofarril, 779 F.2d at 792.

ENTRAPMENT BY REVERSE STING

The trial judge held that the defendants were entrapped as a matter of law by the conduct of the police in selling/purchasing cocaine within one thousand feet of a school during the evening hours.

Section 777.201, Florida Statute (1987) states:

Entrapment.--

(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

(2) A person prosecuted for a crime shall be acquitted if he proves by a preponderance

Page 282

of the evidence that his criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

To demonstrate that no entrapment occurred sub judice, the state relies upon Cruz v. State, 465 So.2d 516, 522 (Fla.1985), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), wherein the supreme court stated:

[Objective] entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity.

We are not happy with the knowledge that undercover police have been selling drugs near schools, but we are of the opinion that the instant police conduct passes the first prong of the Cruz test because it was obviously undertaken in response to the untenable high volume of drug trade near the school where the defendants were apprehended. It also passes the second prong because this sting was tailored to apprehend ongoing criminal activity, and is not outrageous as a matter of law. See Sarno v. State, 424 So.2d 829 (Fla. 3d DCA 1982), pet. for rev. den., 434 So.2d 888 (Fla.1983); Gonzalez v. State, 525 So.2d 1005 (Fla. 3d DCA 1988).

Defendant Burch, who was charged with selling cocaine within the one thousand foot zone, analogizes to Horsemen's Benevolent and Protective Assoc., Florida Division v. Division of Pari-Mutuel Wagering, 397 So.2d 692 (Fla.1981), where the court found a statute to be an invalid exercise of the police power. That statute required licensed racetracks holding permits for thoroughbred racing to deduct one percent from the total purse pool paid and pay it to the horsemen's association representing a majority of the owners and trainers of thoroughbred horses stabled in Florida. While the objective of the statute (improving the quality of racing which would enhance tourist revenues) was valid, the means selected to achieve it was an invalid exercise of police power in that there was no reasonable relationship between the objective of the statute and the form of the statute, which contained no provision for how funds must be spent or that they must be spent in furtherance of the legitimate state objective. The statute before us now, as defendant Burch sees it, prohibits purchasing drugs near a school even at night when the campus has been closed for hours and the children supposedly have gone home. The same enhanced penalty is applied to adults who "wander" into the protected zone and purchase or sell drugs from other adults as well as school children. If the legislative intent was to create a "drug free zone" around schools, argues Burch, the setting up of reverse-sting operations by the police to lure drug buyers or sellers nearer to schools is in direct contravention of the purported purpose of the law. This argument was addressed in United States v. Agilar, wherein the court stated:

Agilar contends that the statute offends the Due Process Clause by creating an unwarranted irrebuttable presumption that every sale of narcotics within 1,000 feet of a school has the detrimental effects upon school children that Congress sought to avoid by enacting section 845a. The cases condemning irrebuttable presumptions that lack rationality, e.g., Cleveland Board of Education v. La Fleur, 414...

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68 practice notes
  • State v. Coria, No. 58522-9
    • United States
    • United States State Supreme Court of Washington
    • November 12, 1992
    ...that have examined state counterparts to RCW 69.50.435 have also upheld the lack of any mens rea requirement. E.g., State v. Burch, 545 So.2d 279, 281 (Fla.Dist.Ct.App.1989); State v. Moore, 782 P.2d 497, 504-05 (Utah 1989); State v. Morales, 224 N.J.Super. 72, 84-85, 539 A.2d 769 (1987); c......
  • State v. Maldonado
    • United States
    • New Jersey Supreme Court
    • August 1, 1994
    ...year sentence for a death caused by the defendant's distribution or manufacturing of a CDS is beyond reproach. See also State v. Burch, 545 So.2d 279, 284-85 (Fla.Dist.Ct.App.1989) (holding that statute imposing up to 30 years imprisonment for distribution of cocaine within 1000 feet of a s......
  • Com. v. Alvarez
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 24, 1992
    ...of narcotics within 1,000 feet of a school). Other similar Federal decisions are cited in note 3, supra. See also State v. Burch, 545 So.2d 279, 281 (Fla.App.1989) (no knowledge of location within school zone required); State v. Williford, 571 N.E.2d 310, 311 (Ind.1991) (same); State v. Bro......
  • Dawson v. State, No. 49
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...penalties for doing business near school property," and rejecting due process and equal protection arguments); State v. Burch, 545 So.2d 279, 284 (Fla.App.1989) (holding that Florida statute did not constitute an unreasonable exercise of the state's police power, and rejecting due proc......
  • Request a trial to view additional results
68 cases
  • State v. Coria, No. 58522-9
    • United States
    • United States State Supreme Court of Washington
    • November 12, 1992
    ...that have examined state counterparts to RCW 69.50.435 have also upheld the lack of any mens rea requirement. E.g., State v. Burch, 545 So.2d 279, 281 (Fla.Dist.Ct.App.1989); State v. Moore, 782 P.2d 497, 504-05 (Utah 1989); State v. Morales, 224 N.J.Super. 72, 84-85, 539 A.2d 769 (1987); c......
  • State v. Maldonado
    • United States
    • New Jersey Supreme Court
    • August 1, 1994
    ...year sentence for a death caused by the defendant's distribution or manufacturing of a CDS is beyond reproach. See also State v. Burch, 545 So.2d 279, 284-85 (Fla.Dist.Ct.App.1989) (holding that statute imposing up to 30 years imprisonment for distribution of cocaine within 1000 feet of a s......
  • Com. v. Alvarez
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 24, 1992
    ...of narcotics within 1,000 feet of a school). Other similar Federal decisions are cited in note 3, supra. See also State v. Burch, 545 So.2d 279, 281 (Fla.App.1989) (no knowledge of location within school zone required); State v. Williford, 571 N.E.2d 310, 311 (Ind.1991) (same); State v. Bro......
  • Dawson v. State, No. 49
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...of stiffer penalties for doing business near school property," and rejecting due process and equal protection arguments); State v. Burch, 545 So.2d 279, 284 (Fla.App.1989) (holding that Florida statute did not constitute an unreasonable exercise of the state's police power, and rejecting du......
  • Request a trial to view additional results

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