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State v. Brown

District Court of Appeal of Florida, Fourth District
May 15, 1991
579 So. 2d 375 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-3123.

May 15, 1991.

Appeal from the Circuit Court, Broward County, Russell E. Seay, Jr., J.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Jacqueline Saltiel, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Robert Friedman, Asst. Public Defender, West Palm Beach, for appellee.


We affirm the trial judge's dismissal of the information charging appellee with having sold cocaine within 1,000 feet of a public or private elementary, middle or secondary school in violation of section 893.13(1)(e), Florida Statutes (1989). The school in question was a private kindergarten called "Morris Learning Center".

Appellee's motion to dismiss asked that the entire information against him be dismissed. The information contained three counts, the first charging him with sale of cocaine within 1,000 feet of a school, the second charging simple possession of cocaine, and the third possession of drug paraphernalia. The motion dealt only with the offense relating to the school. Yet the trial court dismissed all three counts without explanation. The State, however, raises no issue on appeal other than the issue involving the school. Accordingly while we might have reversed the dismissal of the second and third counts, the State's failure to raise those issues precludes us from doing so.

While the legislature may have secretly intended its handiwork to apply to private kindergartens, it simply did not say so. What it did say is capable of being understood to apply only to public and private elementary schools, not including kindergartens. Strict construction of this criminal statute in favor of the accused and stare decisis require us to read the statute as excluding private kindergartens and pre-schools, as we did in State v. Roland, 577 So.2d 680 (Fla. 4th DCA 1991).

AFFIRMED.

DOWNEY, GUNTHER and FARMER, JJ., concur.


Summaries of

State v. Brown

District Court of Appeal of Florida, Fourth District
May 15, 1991
579 So. 2d 375 (Fla. Dist. Ct. App. 1991)
Case details for

State v. Brown

Case Details

Full title:STATE OF FLORIDA, APPELLANT, v. FREDDIE JAMES BROWN, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: May 15, 1991

Citations

579 So. 2d 375 (Fla. Dist. Ct. App. 1991)