Jean v. StateJean v. State
Appellant challenges his conviction for sale of cocaine within 1,000 feet of a place оf worship, asserting that section
At appellant‘s trial, two police officers testified that they were doing undercover narcotics work when they encountered appellant who sold them some drugs. A third officer, Officer Hermanson, was acting аs the “cover officer” for the undercover unit. He described the area in which the drug purchase took place. He stated that there was a “regular church” less than two blocks away which conducted nightly services as well as Sunday daytime masses.
Section
Except as authorized in this chapter, it is unlawful for any person to sell, manufacture,
or deliver, or possess with intеnt to sell, manufacture, or deliver, a controlled substance not authorized by law in, on, or within 1,000 feet of a physical plаce of worship at which a church or religious organization regularly conducts religious services or within 1,000 feet of a сonvenience business as defined in s. 812.171 .
Appellant contends that the statute is unconstitutionally vague because it fails to define “a place of worship,” “a church or religious organization,” or “regularly conducted religious services.”
“In order to withstand a vagueness challenge, a statute must be specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct.” State v. Mitro, 700 So.2d 643, 645 (Fla.1997) (citations omitted). In State v. Kahles, 644 So.2d 512, 512-13 (Fla. 4th DCA 1994), approved, 657 So.2d 897 (Fla.1995), this court stated the following with regard to the principles tо be applied in determining whether a criminal statute is facially unconstitutional:
In a facial challenge to the ovеrbreadth and vagueness of a law, a court‘s first task is to determine whether the enactment reaches a substantial amоunt of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then еxamine the facial vagueness challenge and, assuming the enactment implicates no constitutionally proteсted conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff whо engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as аpplied to the conduct of others. A court should therefore examine the complainant‘s conduct before analyzing other hypothetical applications of the law.
(quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982))(еmphasis added)(footnotes omitted); see also Fox v. State, 700 So.2d 172, 173 n. 1 (Fla. 4th DCA 1997) (“[T]he [U.S.] Supreme Court continues to examine vagueness challenges in light of a defendant‘s conduct, recognizing that the theoretical possibility of improper enforcement `is of no due prоcess significance unless the possibility ripens into a prosecution.‘“) (quoting Posters `N’ Things, Ltd. v. U.S., 511 U.S. 513, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994) (quotation omitted)), rev. denied, 705 So.2d 901 (Fla.1998).
As section
Consistent with these principles of constitutional аnalysis, this court must, in evaluating appellant‘s vagueness claim, examine his conduct before analyzing other applications of the statute. See Kahles, 644 So.2d at 512-13; State v. Barnes, 686 So.2d 633, 637 (Fla. 2d DCA 1996), rev. denied, 695 So.2d 698 (Fla.), and cert. denied, 522 U.S. 903, 118 S.Ct. 257, 139 L.Ed.2d 184 (1997). “If the record demonstrates that the appell[ant] engaged in some conduct clearly рroscribed by the plain and ordinary meaning of the statute, then he cannot successfully challenge it for vagueness nor сomplain of its vagueness as applied to the hypothetical conduct of others.” Barnes, 686 So.2d at 636.
Based on the evidencе adduced at trial, appellant‘s conduct fell within the conduct proscribed by the plain meaning of section
Insofar as appellant‘s conduct fell clearly within the statutory prohibition, his vagueness claim grounded upon the due process clause is also unavailing in that “objections to vagueness under the Due Procеss Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988) (emphasis added); see also State v. Hamilton, 388 So.2d 561, 562 (Fla.1980) (defendant whose conduct clearly falls within statutory prohibition cannot complain of absence of notice).
We affirm the conviction and judgment.
WARNER, STEVENSON and TAYLOR, JJ., concur.