JAMAROL D

. FLETCHER , Appellant,

v. STATE OF FLORIDA , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 14

- 3874

____ _________________________/ Opinion filed July 8, 2015. An appeal from the Circuit Court for Duval County

. Kevin A. Blazs , Judge

. Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee , for Appellant.
Pamela J o Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney General, Tallahassee , for Appellee.

BILBREY, J. Appellant Jamarol Donnell Flet cher challenges his conviction s and sentences for possession of cocaine within 1,000 feet of a church a nd possession of cocaine with intent to sell and within 1,000 feet of a church arguing , in part, the2 trial court erred in denying his motion for a judgment of acquittal made as to both counts. He also argues that the trial court erred i n admitting a photo graph offered by the State. We hold the trial court did not abuse its discretion in admitting the photograph as more probative than prejudicial and deny relief as to that issue without further comment. As for the denial of the motion for a judgment of

ac quittal, we hold that the trial court erred in finding that the State sufficiently proved that the offenses were committed within 1,000 feet of a church which regularly conduct ed religious services at the time of the offense

. In all other respects, the de nial of the motion for a judgment of acquittal is affirmed. Appellant was arrested following a police surveillance of an area of downtown Jacksonville. Very near the location of the drug tr ansaction for which

a ppellant was arrested was a church, Mt. Zio n AME Church, and at trial , a trustee of that church was asked by the prosecutor: Q. And does the church conduct regular religious services? A. Yes, it does. Q. How often would you say you conduct those services? A. We have Sunday School, church school ev ery Sunday, and then we have religious services of church services every Sunday. No other evidence was offered regarding the activities of the church. Appellant’s trial took place approximately six months after appellant’s arrest.
S ection 893.13(1)(e), Florida S tatutes (2014), provides that it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell,3 manufacture or deliver, “ a controlled substance not authorized by law in, on, or within 1,000 feet of a physical place fo r worship at which a church or religious organization regularly conducts religious services.

. . . ” This statute has been construed to require the State to prove at trial that regular religious services were being held at the time of the offense. See Wil der v. State , 147 So. 3d 673 (Fla. 4th DCA 2014) ; Moore v. State , 18 So. 3d 715 (Fla. 2d DCA 2009); Wallace v. State , 814 S o. 2d 1255 (Fla. 5th DCA 2002). See also A.B. v. State , 150 So. 3d 883 (Fla. 2d DCA 2014); Hill v. State , 830 So. 2d 876 (Fla. 5th D CA 2002). C f

. McHolder
v. State , 917 So. 2d 1043 (Fla. 5th DCA 2006) (holding the State sufficiently proved a sale occurred within 1 , 000 feet of a place of worship and that religious services we re regularly conducted when the officer testified this church conducted regular worship services as he had observed people entering and leaving the church on Sunday mornings in church attire at regular times and when photographs of the church and a church sign listing the times and days of wor ship were admitted as

ev idence ). This C ourt has held similarly with regard to a companion statute, section 893.13(1)(c), Florida Statutes (1999) , which prohibits the sale, manufacture, delivery or possession of contraband within 1,000 feet of a school. Cox v. State , 764 So. 2 d 711 (Fla. 1st DCA 2000) (holding the State was required to prove the site of the drug sale was a school when the offense took place and evidence that it4 was a school two years earlier was insufficient). As the Florida Supreme Court has reaffirmed, “ [i] t is a basic rule of statutory construction that statutes that are penal in nature must be strictly construed, and the conduct of the accused must fall plainly and unmistakably within the criminal statute to justify a conviction .” Greenwade v. State , 124 S o. 3d 215 , 228 (Fla. 2013). Here, the testimony that church services were held at t he time of trial is not evidence of regularly conducted religious services at the time of the offense. Accordingly, we reverse the conviction s and sentence s for sale of coc aine within
1 , 000 feet of a church and possession with intent to sell within 1,000 feet of a
church

. Further, we remand this c ause with directions to enter conviction s for sale of cocaine and possession of cocaine with intent to sell and to impose sentenc e pursuant to a corrected judgment and scoresheet

. In all other respects, the trial court's rulings are affirmed

. AFFIRMED in part, REVERSED in part, and REMANDED. WOLF and WETHERELL, JJ., CONCUR.