FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Christopher
C. Nash, Judge.
L. Dimmig, II, Public Defender, and Matthew D. Bernstein,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Peter N. Koclanes,
Assistant Attorney General, Tampa, for Appellee.
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.
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.
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."
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.
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." 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
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.
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 ...