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Reese v. State

Florida Court of Appeals, Second District

October 30, 2019

HERBERT REESE, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

          Appeal from the Circuit Court for Hillsborough County; Christopher C. Nash, Judge.

          Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Peter N. Koclanes, Assistant Attorney General, Tampa, for Appellee.

          LaRose, Judge.

         We have jurisdiction over Herbert Reese's appeal of his judgment and sentences for delivery of cannabis within 1000 feet of a school and for possession of cannabis. See Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(A), (F). Because of the abbreviated manner in which the State charged him, Mr. Reese has demonstrated fundamental error on the delivery charge. Thus, we reverse as to that alleged offense.

         Background

         The State charged Mr. Reese with delivery of cannabis within 1000 feet of a school (count 1), delivery of cannabis (count 2), and possession of cannabis (count 3). The State nolle prossed count 2 and proceeded to trial on the remaining counts.

         As to count 1, the amended information alleged that Mr. Reese violated section 893.13, Florida Statutes (2017), by "knowingly and unlawfully deliver[ing] or attempt[ing] to deliver . . . Cannabis . . . in, on, or within 1000 feet of the real property comprising a[n] . . . elementary, middle or secondary school." Critically, the sole manner in which Mr. Reese allegedly committed the offense was by delivering or attempting to deliver cannabis. Count 3 of the amended information alleged that Mr. Reese "knowingly and unlawfully possess[ed] not more than twenty (20) grams of . . . Cannabis."

         At trial, the State called a confidential informant. She testified that she conducted a "pending buy" for law enforcement. The informant explained that "I'll walk up to a group of people" and arrange a drug purchase. "I . . . just obtain the drugs. You know, I go get it and I make contact . . . and I just bring the product back" to her law enforcement handler.

         She then explained and narrated a video recording of the drug transaction. Specifically, the informant testified that she approached a man, asking him "where I can get some loud from."[1] She gave the man twenty dollars "and asked for $10 worth of loud." The man then approached another man sitting inside a vehicle and "gave the guy in the car the 20-dollar bill. And the guy [in the car] gave him the loud and the ten-dollar bill. And he handed it back to me."

         The informant never spoke with the man in the vehicle. However, she saw his face; she identified Mr. Reese in court as that man. A law enforcement officer later arrested Mr. Reese.

         In closing, the State asserted as follows:

Now, when you go back to deliberate - before you do, the Judge will give you a set of instructions. And in those instructions will contain the elements of the crimes of which the defendant is charged with. Again, he's charged with the delivery of cannabis within 1, 000 feet of a school and possession of cannabis.
So with regards to the elements of delivery of cannabis, there are only four elements which the State must prove. No. 1, Herbert Reese, the defendant, sold, delivered, or possessed with intent to sell or deliver a certain substance. That substance being cannabis.
Okay. So Members of the Jury, where does that leave you with? You've got four elements. Of the four elements, two you can automatically check off and say the State has proven beyond a reasonable doubt. So that leaves element one and four. That the defendant sold, delivered, possessed with intent to sell or deliver a certain substance. And that the defendant had knowledge.

(Emphasis added.) Following closing arguments, the trial court instructed the jury. As to count 1, the trial ...


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