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642 So. 2d 828

Docket No. 92-02921.

Stevens v. State

Robert Lee STEVENS, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided September 23, 1994.

District Court of Appeal of Florida · decided 1994-09-23

Cited by 9 later decisions — most recently October 2011

9 state decisions

Key passage — most relied on by later courts

“The officer then stated that he observed the defendant reach into his pocket, grab several baggies, give one of the baggies to Hill, and put the rest back in his pocket. On appeal, the district court concluded that the officer's testimony as to Hill's statement was properly admissible under the verbal act doctrine since it served to prove the nature of the subsequent act by Hill rather than the truth of the statement. See id. at 829 . The court stated that Hill's yelling out,”

quoted by 1 later decision, including 790 So. 2d 1094 - Banks v. State

“was not offered for the truth asserted, but to show that the defendant was a participant when he acknowledged Hill's statement by acting on it. See id. In other words, this statement was offered not so much for its truth or falsity, as it was to explain the defendant's reaction to it, i.e., the defendant's promptly acting to provide the illegal drugs to complete the transaction. We conclude that the same cannot be said as to Goodman's statements to the effect that Banks was”

quoted by 1 later decision, including 790 So. 2d 1094 - Banks v. State

Relies on Bruton v. United States · 629 So. 2d 841 - Brown v. State · 544 So. 2d 322 - Harris v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1994-09-23

View the full empirical analysis of this case →

¶1*829 Nick J. Sinardi, Tampa, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.

¶3CAMPBELL, Judge.

¶4Appellant was found guilty by a jury of delivery of cocaine within 1,000 feet of a school (§ 893.13(1)(e), Fla. Stat. (1991)), delivery of cocaine within 200 feet of a public housing facility (§ 893.13(1)(i), Fla. Stat. (1991)), and possession of cocaine (§ 893.13(1)(f), Fla. Stat. (1991)). He challenges his convictions on evidentiary and constitutional grounds. We find no merit in appellant's evidentiary argument, but agree with him that his conviction under section 893.13(1)(i) must be vacated since the Florida Supreme Court has held that statute unconstitutionally vague.

¶5Appellant first argues that admission of his codefendant Hill's statement violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, the incident complained of could not be a Bruton violation. Bruton prohibits as hearsay the admission of a codefendant's confession or statement that implicates the defendant. The officer's testimony concerning Hill's statement here was not hearsay, however, since the testimony was not introduced for its truth, but to show its effect on appellant. It was properly admissible as verbal acts since it served to prove the nature of the act or transaction. See Decile v. State, 516 So.2d 1139 (Fla. 4th DCA 1987); Araujo v. State, 452 So.2d 54, 56 n. 4 (Fla. 3d DCA 1984). Contrast Harris v. State, 544 So.2d 322 (Fla. 4th DCA 1989). The officer was merely relating what he saw and heard to show that appellant participated in the offense. The complained-of testimony, based on the officer's presence at the scene, was as follows:

Okay. Basically he (Hill) asked what I needed, what was I looking for. I told him I was looking for a dime, that is $10 worth of cocaine. And then he asked me, "Powder?" And I said, "Sure if you have it but I only have $9." He says, "That's no problem." At that point —
... .
At which point he turned away from my car and he started walking to — there's a building right here and he met Mr. Stevens which was standing right here. As he was walking over to the car I heard him yell out "I need a dime" to Mr. Stevens in this direction.
... .
Okay. when Mr. Hill met Mr. Stevens, Mr. Hill was standing approximately right here side-by-side with Mr. Stevens. Um, I saw Mr. Stevens reach into his pocket, I don't — I'm not sure which one, and grab a whole bunch of plastic baggies; at which point he gave Mr. Hill one, put the rest back in his pocket, then Mr. Hill came back to me.

¶6Clearly, Hill's yelling out, "I need a dime," was not offered for the truth (that Hill needed a dime), but to show that appellant was a participant and acknowledged Hill's statement by acting on it. Appellant's participation could not have been demonstrated any other way. Since the testimony was not offered for its truth, it is not hearsay, and cannot violated the Bruton rule. We, accordingly, affirm appellant's convictions for delivery of cocaine within 1,000 feet of a school and possession of cocaine.

¶7We agree with appellant as to his second point, however. The Supreme Court has found section 893.13(1)(i) unconstitutionally void for vagueness. Brown v. State, 629 So.2d 841 (Fla. 1994). Accordingly, we vacate *830 appellant's conviction for delivery of cocaine within 200 feet of a public housing facility.

¶8FRANK, C.J., and PARKER, J., concur.

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