LIFERSON BREVIL v. STATE OF FLORIDA, 19-3011

Background

Liferson Brevil faced consolidated prosecutions for sale of cocaine and sale of heroin, each charged with the enhancement for occurring within 1,000 feet of a child care facility. One case went to jury trial; the other resulted in a guilty plea.
At trial the state proved the drug sales occurred within 1,000 feet of a preschool; photos of multiple signs were admitted showing words like “PRESCHOOL,” the center name, a phone number, and “Register Now,” but none said “licensed child care facility.” The state did not dispute absence of the word “licensed.”
Defense moved for judgment of acquittal arguing the enhancement did not apply because the statutorily required sign identifying the facility as a "licensed child care facility" was absent; the trial court denied the motion and the jury convicted.
On appeal the Fourth District held the undisputed evidence about signage presented a question of law, not fact, and reversed the trial conviction, directing the court to reduce the enhanced convictions to the lesser non-enhanced sales offenses and resentence.
In the plea case Brevil argued the plea was fundamentally in error because the required sign was absent; the court rejected that claim, holding the sign requirement is an affirmative defense (not an element) and affirmed the conviction but remanded for resentencing using an amended scoresheet.

Issues

Issue	State's Argument	Brevil's Argument	Held
Whether the trial court erred in denying motion for judgment of acquittal because signage did not identify the facility as a “licensed child care facility”	Signs’ size, placement, and words like “preschool”/contact info would put a reasonable person on notice; factual question for jury	No sign used the word “licensed”; absence was undisputed so enhancement cannot apply as a matter of law	Reversed trial conviction: undisputed absence of required “licensed” wording meant no factual dispute for jury; reduce to lesser sales offenses and resentence
Whether the statutory sign requirement is an element of the offense or an affirmative defense	The statute’s sign-language requirement does not negate the prohibition in the enacting clause; facts can support enhancement unless defense shown	Acceptance of guilty plea was fundamentally in error because record showed enhancement could not be proved (no sign)	Sign requirement is an affirmative defense (in a subsequent clause), not an element; plea not fundamentally in error; affirm plea judgment but remand for resentencing
Proper statutory construction: are “magic words” required (i.e., must sign literally say “licensed child care facility”)?	Per prior precedent, statute does not require specific magic words; wording sufficient if it would reasonably notify the public	Penal statute must be strictly construed; the word “licensed” cannot be ignored—absence defeats enhancement	Court adopts strict-construction view: statute requires language identifying the facility as a licensed child care facility; cannot render “licensed” surplusage

Key Cases Cited

Williams v. State, 845 So. 2d 987 (Fla. 1st DCA 2003) (held sign wording can be evaluated by jury; majority declined to require specific "magic words")
Perkins v. State, 576 So. 2d 1310 (Fla. 1991) (penal statutes must be strictly construed)
State v. Robarge, 450 So. 2d 855 (Fla. 1984) (distinguishes elements in enacting clause from exceptions in subsequent clause; latter are defenses)
Harris v. State, 289 So. 3d 962 (Fla. 4th DCA 2020) (motion for judgment of acquittal reviewed de novo)
Miller v. State, 988 So. 2d 138 (Fla. 1st DCA 2008) (fundamental error where record affirmatively shows crime could not occur)
Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220 (Fla. 2009) (statutory construction principle against treating words as surplusage)