Florida District Courts of Appeal, 1991

State v. Brown

Florida District Courts of Appeal · Decided May 15, 1991 · Downey, Farmer, Gunther

579 So. 2d 375; 1991 Fla. App. LEXIS 4578; 1991 WL 76526 (Southern Reporter, Second Series)

Opinion of the Court

PER CURIAM.

We affirm the trial judge’s dismissal of the information charging appellee with having sold cocaine within 1,000 feet of a public or private elementary, middle or secondary school in violation of section 893.-13(l)(e), Florida Statutes (1989).1 The *376school in question was a private kindergarten called “Morris Learning Center”.

While the legislature may have secretly intended its handiwork to apply to private kindergartens, it simply did not say so. What it did say is capable of being understood to apply only to public and private elementary schools, not including kindergartens. Strict construction of this criminal statute in favor of the accused and stare decisis require us to read the statute as excluding private kindergartens and preschools, as we did in State v. Roland, 511 So.2d 680 (Fla. 4th DCA 1991).

AFFIRMED.

DOWNEY, GUNTHER and FARMER, JJ., concur.

. Appellee’s motion to dismiss asked that the entire information against him be dismissed. The information contained three counts, the first charging him with sale of cocaine within *3761,000 feet of a school, the second charging simple possession of cocaine, and the third possession of drug paraphernalia. The motion dealt only with the offense relating to the school. Yet the trial court dismissed all three counts without explanation. The State, however, raises no issue on appeal other than the issue involving the school. Accordingly while we might have reversed the dismissal of the second and third counts, the State's failure to raise those issues precludes us from doing so.

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