Aiello v. State

• Decision Date: 12 November 1980
• Docket Number: No. 79-2231,79-2231
• Citation: 390 So.2d 1205
• Parties: Joseph AIELLO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1205

390 So.2d 1205

Joseph AIELLO, Appellant, v. STATE of Florida, Appellee.

No. 79-2231.

District Court of Appeal of Florida, Fourth District.

Nov. 12, 1980.

Rehearing Denied Dec. 31, 1980.

Richard L. Polin and Don R. Allen, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.

HURLEY, Judge.

Defendant, Joseph Aiello, appeals his convictions and sentences imposed after three verdicts of guilty of engaging in common bookmaking schemes contrary to Section 849.25(3), Florida Statutes (1975). We affirm in part and reverse in part.

The information charged the defendant with three separate counts of bookmaking in violation of Section 849.25(3), Florida Statutes (1975). ¹ Subsection one of the statute defines "bookmaking" as "the taking or receiving of any bet or wager." Subsection three of the statute lists three types of activity which, if proven, will upgrade the penalty for bookmaking from a first degree misdemeanor to a third degree felony. The activities are: (1) receiving or accepting more than five bets in any one day; (2) receiving bets totaling more than $500.00; or, (3) engaging in a common bookmaking scheme with three or more persons.

Through a statement of particulars, the state advised the defendant that he was being charged with the last mode of activity, i. e., engaging in a common bookmaking scheme with three or more persons. The state further specified that count one allegedly occurred on November 21, 1975, count two on November 22, 1975 and count three on November 23, 1975. The case was tried by a jury which found the defendant guilty of all counts. The court thereupon adjudicated the defendant guilty of each count and imposed a sentence of three concurrent prison terms of eighteen months, followed by three years probation and a fine of $1,250.00.

I

Though neither party to this appeal has suggested that the imposition of three sentences may constitute multiple punishments for a single crime, we conclude that such is the case. Moreover, the error is fundamental and, consequently, may be considered on appeal despite the lack of an objection below. Mims v. United States, 375 F.2d 135 (5th Cir. 1967); Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), aff'd 363 So.2d 331 (Fla.1978).

It is a basic precept of constitutional law that the double jeopardy clause of the Fifth Amendment protects against multiple punishments for the same offense. Illinois v. Vitale, --- U.S. ----, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Whether an information charges multiple conspiracies or a single ongoing conspiracy depends upon analysis of the proof adduced at trial, but it is certain "that a single agreement to commit an offense does not become several conspiracies because it continues over a period of time." Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). Indeed, this rule was laid down over thirty years before Braverman by Mr. Justice Holmes in United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910), when he said:

But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one.

The state is not free to arbitrarily decide whether there is one agreement or several. United States v. Palermo, 410 F.2d 468 (7th Cir. 1969). The issue must be resolved by an analysis of the proof adduced at trial. As the court noted in United States v. Perez, 489 F.2d 51, 57 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974), distinguishing between one overall conspiracy and several separate conspiracies is "a frustrating and challenging task." The court further held that:

In essence, the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy. Id. at 62.

Turning to the evidence in the case at bar and viewing it in the light most favorable to the state, and giving the state the benefit of all inferences to be drawn therefrom, Tegethoff v. State, 220 So.2d 399 (Fla. 4th DCA 1969), we find proof of only one common bookmaking scheme. The record is replete with continuing instructions on how each participant was to fulfill his role in accepting and transmitting bets. Indeed, the key participants remained the same throughout the three day conspiracy. The evidence portrays the defendant Aiello as the head man and operational core of an ongoing bookmaking ring. No other interpretation is possible. Thus, as a matter of law, the defendant could not be convicted nor sentenced for more than one offense. Therefore, defendant's convictions and sentences for counts two and three must be reversed.

II

Defendant's major thrust on appeal is the contention that the evidence adduced at trial is insufficient to establish a common bookmaking scheme with three or more persons. He argues that at best, the state proved his involvement with three individual bettors which, as a matter of law, is inadequate. The state accepted defendant's characterization of the evidence and maintained that individual bettors may be counted to satisfy the statute's numerical requirement of three or more persons. We believe the state's position is incorrect, ² but we need not treat this issue exhaustively since the evidence presented at trial conclusively shows that the defendant engaged in a common bookmaking scheme with three or more persons who, themselves, were also engaged in taking or receiving bets. In other words, they were more than individual bettors.

In Tegethoff v. State, supra, the court enunciated the appropriate appellate standard by which a claim of insufficiency of evidence should be measured:

In examining a record to determine the sufficiency of evidence, an appellate court need only find substantial competent evidence to support the verdict. The verdict and judgment carry a presumption of correctness; hence, all inferences to be drawn from the evidence are to be drawn in favor of the verdict and judgment. Id. at 400.

Since the defendant apparently failed to object to the manner in which a single conspiracy was charged in three counts, and because he was fully advised of the dates and individuals involved, we view the information as charging a single common scheme extending from November 21, 1975 through November 23, 1975. Given the defendant's contention that the evidence adduced at trial was insufficient to support a conviction, our task on appeal is to determine whether the state's evidence established a common bookmaking scheme between the dates specified, and with three or more persons from those listed on the statement of particulars, ³ who satisfy the statute's requirements.

The linchpin in the state's evidence was a series of fifteen intercepted telephone conversations between the defendant and an individual named Angelo Congiunti. Mr. Congiunti's home telephone had been tapped pursuant to a court order, the validity of which is not before us. After listening to the tape recorded telephone conversations, the jury heard Captain Joseph Pierce of the Broward County Sheriff's Office explain several of the terms used during the conversations. Captain Pierce also offered his opinion on the structure of the bookmaking organization and the roles of the various participants. Viewing this body of evidence from the Tegethoff perspective, there is substantial competent evidence to support a finding that Mr. Aiello was the "head man" or "banker" of an ongoing bookmaking operation which had interlocking connections with other bookmaking...