Adams v. Murphy, 57451

• Decision Date: 29 January 1981
• Docket Number: No. 57451,57451
• Citation: 394 So.2d 411
• Parties: Don A. ADAMS, Petitioner-Appellee, v. Ernest P. MURPHY and Louie L. Wainwright, Respondents-Appellants.
• Court: Florida Supreme Court

Page 411

394 So.2d 411

Don A. ADAMS, Petitioner-Appellee, v. Ernest P. MURPHY and Louie L. Wainwright, Respondents-Appellants.

No. 57451.

Supreme Court of Florida.

Jan. 29, 1981.

Rehearing Denied March 18, 1981.

Joseph F. McDermott, St. Petersburg, for petitioner-appellee.

Jim Smith, Atty. Gen. and Benedict P. Kuehne and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for respondents-appellants.

BOYD, Justice.

This cause is before the Court on the certificate of the United States Court of Appeals for the Fifth Circuit that a question of Florida law upon which there is no controlling precedent is determinative of the instant appeal pending in that court. Adams v. Murphy, 598 F.2d 982 (5th Cir. 1979). We have authority to answer the certified question by written opinion. Fla.R.App.P. 9.510.

Adams was charged with the crime of perjury in violation of section 837.02, Florida Statutes (1973). It was alleged that he had lied to a grand jury. At trial, Adams' attorney requested that the court instruct the jury on the crime of attempt to commit perjury. The court gave the requested instruction and the jury returned a verdict finding Adams guilty of attempted perjury.

On appeal, the judgment of conviction of attempted perjury was affirmed, per curiam, without opinion. Adams v. State, 320 So.2d 58 (Fla. 4th DCA 1975). Adams then sought review in this Court. The Court initially issued the writ of certiorari but later determined that it lacked jurisdiction. The writ was discharged. Adams v. State, 339 So.2d 214 (Fla.1976). A subsequent petition for writ of habeas corpus, filed in this Court, was denied.

The case is pending in the Fifth Circuit on appeal from an order of the United States District Court for the Middle District of Florida, which granted Adams relief on his petition for writ of habeas corpus. The district court ruled that the Florida trial court's instruction on and judgment of conviction of the nonexistent offense of attempted perjury denied due process. The United States Court of Appeals has certified the following question: "Is attempted perjury in an official proceeding a criminal offense under the laws of Florida?"

Section 837.02, Florida Statutes (1973), provides:

Whoever being lawfully required to depose the truth in any proceeding in a court of justice, commits perjury, shall, if the perjury is committed on the trial of an indictment for a capital crime, be guilty of a felony of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084; and if committed in any other case, guilty of a felony of the second degree, punishable as provided in § 775.082 or § 775.083.

Thus the statute forbids, but does not fully define, the crime of perjury. In such circumstances, it is appropriate to look to the common law for the definition of the crime. Carnley v. State, 88 Fla. 281, 102 So. 333 (1924).

In the decisional law of Florida, perjury is defined as the willful giving of false testimony under lawful oath on a material matter in a judicial proceeding. E.g., Gordon v. State, 104 So.2d 524 (Fla.1958); Miller v. State, 15 Fla. 577 (1876).

Appellees-respondents, officials of the State of Florida, argue that there is such a crime as attempted perjury. They suggest that the existence of such a crime is logically plausible for the following reasons. An attempt consists of a specific criminal intent to commit the crime and an overt act beyond preparation toward that end. Therefore, one who intentionally testifies falsely under oath, unaware that the testimony is not material or that the person administering the oath has no authority to do so or that the proceeding is not an official judicial proceeding, commits the crime of attempted perjury.

Appellees-respondents correctly state that an attempt to commit crime consists of two essential elements: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards its commission. Turner v. State, 100 Fla. 1078, 130 So. 617 (1930); Gustine v. State, 86 Fla. 24, 97 So. 207 (1923). The intent and the act must be such that they would have resulted, except for the interference of some cause preventing the carrying out of the intent, in the completed commission of the crime. The State of Florida has incorporated this definition in its general attempt statute:

Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, shall, when no express provision is made by law for the punishment of such attempt, be punished as follows:

§ 776.04, Fla.Stat. (1973). Thus the state officials' argument is that where the intent and the overt act of falsely testifying are shown, but the crime is not completed because one of the other elements is lacking, then the facts establish the crime of attempted perjury.

Even though we have a broadly applicable general attempt statute in Florida, there are some crimes of which it can be said that the attempt thereof simply does not exist as an offense. See, e. g., State v. Thomas, 362 So.2d 1348 (Fla.1978) (attempted possession of burglary tools is not a crime); King v. State, 317 So.2d 852 (Fla. 1st DCA 1975) (attempted uttering of a forged instrument is not a crime).

In King v. State, the defendant was charged with uttering a forged instrument. At trial, he asked that the jury be charged on attempt pursuant to Florida Rule of Criminal Procedure 3.510. The court refused. The defendant was convicted and on appeal assigned the refusal to instruct as error. The appellate court said: "If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime." Id. at 853. Applying this principle, the court held that under Florida law there is no offense of attempted uttering of a forged instrument, and therefore the refusal to charge on attempt was proper.

This view of the nature of criminal attempts was also expressed in Hutchinson v. State, 315 So.2d 546 (Fla.2d DCA 1975), where the state prosecuted a solicitation as an "attempted conspiracy." The court analyzed the general attempt statute. The court prefaced its analysis as follows:

In construing a criminal statutory provision, the primary function of the court is to give effect to the intent of the legislature; and in so doing, each section of the criminal code should be considered in making this determination. But it is also axiomatic that statutes creating and defining crimes cannot be extended by construction or interpretation to punish an act, however wrongful, unless clearly within the intent and terms of the statute. Bradley v. State, 1920, 79 Fla. 651, 84 So. 677.

Id. at 547. The court then observed that the general attempt statute by its terms can apply to any offense, but went on to explain why conspiracy is an exception:

We note that § 776.04 purports to prohibit an attempt to commit any offense prohibited by law. Since there is no express limitating language as to what crimes may or may not be criminally attempted, the statute would appear to prohibit attempted conspiracy if it were not for the remaining language of the statute, and the history and judicial construction of the crime of attempt. Construing the words "and in such an attempt does any act toward commission of such an offense but fails in the perpetration, or is intercepted or prevented in the execution of the same," we think the legislature intended to limit attempts to physical acts carried beyond preparation toward proximate accomplishment of what would be a complete crime. In this respect, solicitation and conspiracy are more remote from the actual perpetration of the intended crime than is an attempt to commit it. This conclusion is supported by Florida courts that have interpreted an attempt to consist of two essential elements: 1) a specific intent to commit the crime; and 2) a separate overt ineffectual act done toward its commission; Robinson v. State, Fla.App.3d 1972, 263 So.2d 595; Groneau v. State, Fla.App. 4th 1967, 201 So.2d 599; Gustine v. State, 1923, 86 Fla. 24, 97 So. 207.

Id. at 547-548.

The Florida case that is perhaps most closely analogous to the problem we are presented with now is Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976). There the appellant was charged with, among other things, making a false report of a crime. She was convicted of an attempt to make such a false report. The court compared the problem to that of uttering a forged instrument, discussed above:

Just as the crime of...