NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

A.B., ) ) Appellant, ) ) v. ) Case No. 2D14-298 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed November 7, 2014. Appeal from the Circuit Court for Hillsborough County; Debra K. Behnke, Judge. Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Chief Judge. A.B. challenges the withhold of his adjudication and his plac ement on juvenile probation after he was found to have committed the del inquent act of delivering- 2 - cocaine within 1000 feet of a church. Because the trial court erred in denying the motion for judgment of dismissal, we reverse. A.B. was arrested after he was alleged to have sold drugs to an undercover officer. The transaction was recorded, and the vide o was produced at the delinquency hearing. Although there was some dispute regarding identity at the hearing, the facts surrounding the sale itself are essentially undisputed, and only the question of whether the State established that the delivery of the cocaine occurred

within 1000 feet of a church remains at issue. At the hearing, a detective prepared and provided a scaled vi sual image of the location of the drug transaction and testified regarding hi s computer-based

calculations of the distance between the transaction site and t he church. According to his measurements, the New Jerusale m Haitian Baptist Church is l ocated between 700 and 800 feet from the place where the sale occurred. He testif ied that he had never been inside the building but that he had been to the location a nd that it was a church, looked like a church, and held itself out to be a church throug h its outside signage. Defense counsel's objection to t his testimony based on a lack o f personal knowledge was overruled. At the close of the State's case, defense couns el moved for a judgment of dismissal, claiming that the State failed to present suffici ent prima facie evidence to support the requisite statutory element that regularly conducte d religious services were held at the church building located within 1000 feet of the del ivery of the cocaine. The trial court denied the motion, and A.B. now challenges that rul ing on appeal. Section 893.13(1)(e), Florida Statutes (2011), provides that "it is unlawful for any person to sell, manufacture, or deliver . . . a control led substance not authorized- 3 - by law in, on, or within 1,000 feet of a physical place for wor ship at which a church or religious organization regularly conducts religious services." (Emphasis added.) In the instant case, the testimony of the detective did not establish that the church building was a physical place of worship at which religious services are regularly conducted. As such, the trial court erred in denying A.B.'s motion for judgme nt of dismissal. See Moore v. State, 18 So. 3d 715, 716 (Fla. 2d DCA 2009) ("In the timeframe when the offense occurred, the officer in this case could not provide ev idence that the church was regularly conducting religious services."); see also Hill v. St ate, 830 So. 2d 876 (Fla. 5th DCA 2002) (reversing conviction for sale within 1000 feet of a place of worship where officer had attended a program in the church but could not offe r testimony regarding whether services were regularly conducted there); Wallace v. St ate, 814 So. 2d 1255, 1257 (Fla. 5th DCA 2002) (concluding that State failed to estab lish statutory elements of offense where officer "merely testified that he was aware (in s ome fashion) that services 'go on' in these two named churches, but there [wa]s no specifi cation as to whether these services [we]re religious in nature or how often they occ ur[red]"); cf. McHolder v. State, 917 So. 2d 1043, 1046 (Fla. 5th DCA 2006) ("[T]he State sufficiently proved the sale occurred within [1000 feet of a place of worship] and that religious services [we]re regularly conducted. . . . [The officer] indicated that this c hurch conducted regular worship services as he had obser ved people entering and leaving the church on Sunday mornings in their church attire at regular times. In ad dition, [the officer] testified

that he had visited the House of God Church. He indicated that he often observed vehicles parked behind the church and persons in suits and dres ses going in and out of- 4 - the church at regular times. M oreover, photographs of the chur ch and a church sign listing the times and days of worship were admitted as evidence ."). We accordingly reverse the disposition finding that A.B. deli vered cocaine within 1000 feet of a church and remand for the entry of a disp osition based on the necessarily lesser-included offens e of delivery of cocaine. Se e Moore, 18 So. 3d at

716.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., Concur.