Alderman v. State, F-169
| Decision Date | 29 September 1964 |
| Docket Number | No. F-169,F-169 |
| Citation | 167 So.2d 635 |
| Parties | Hattie ALDERMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ossinsky & Krol, Daytona Beach, for appellant.
James W. Kynes, Atty. Gen., and A. G. Spicola, Jr., Asst. Atty. Gen., for appellee.
Appellant Hattie Alderman was charged in the circuit court of Volusia County with being 'interested in and connected with a lottery, commonly known as Bolita in that she received and collected money and records of the sale of chances on a lottery for money.' 1 Such charge constituted a felony as provided in subsection 849.09(d). The trial judge instructed the jury as follows:
'Now, as a lesser included offense, included in this charge is:
'It shall be unlawful for any person in this State to sell, offer for sale any lottery ticket, whether such ticket represents an interest in a live lottery not yet played, or whether it represents or has represented an interest in a lottery that has already been played.'
The jury found defendant guilty of selling or offering for sale lottery ticket or tickets. Thus, the critical question with which we are here concerned is whether the information as framed put the defendant on notice that she was subject to being convicted of the offense of selling or offering for sale lottery ticket or tickets.
F.S. section 849.09 F.S.A. provides for two classes of lottery crimes--felonies and misdemeanors. It is not disputed that Appellant was charged with a felony as provided in subsection (d), but convicted of a misdemeanor as provided in subsection (g). In Nelson v. State, 2 defendant was charged with the felony of promoting a lottery known as Cuba or Bolita 'by having in his possession lottery tickets' and so on, and in the second count he was alleged to have been connected with such a lottery by 'selling * * * chances' and so forth. The Supreme Court held that the language used in charging the felony clearly apprised the defendant of the lesser offense of 'selling * * * chances' constituting a misdemeanor.
This court considered the same section in Holliday v. State. 3 There defendant had been charged by an information in three counts. Count I charged the defendant with having set up, promoted and conducted a lottery for money, commonly known as Cuba or Bolita. Defendant was acquitted by the jury on this count. Count II charged the defendant with having aided in such lottery by receiving and taking into possession money, tally or score sheet and record showing the betting on said lottery. As to this count the jury could not agree and mistrial was had upon same. The third count charged defendant of being 'interested in or connected with' such lottery 'in that he received or collected record of the sale of chances' thereon. The jury convicted defendant of the misdemeanor as outlined in subsection (h)--that is, having in his possession lottery tickets, etc. In holding that the information did not apprise defendant that he was being tried for the misdemeanor upon which he was convicted, Judge Sturgis, in speaking for this court, said:
'Casual inspection of count three of the information reflects that it is not sufficiently broad to put the appellant on notice that he was being charged with having had 'in his possession' any of the contraband specified in said paragraph (h). On the contrary, this count charges him with having an 'interest in' or being 'connected in any way with a lottery or lottery drawing,' which words substantially track part of the language of said paragraph (d). We are compelled, therefore, to conclude that it was never the intent to charge appellant with either of the misdemeanors or with the felony prescribed for second offenders, or that if such was the intent, the information fails to definitly or adequately state it.
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State v. Anderson
...State v. Smith, 240 So.2d 807 (Fla.)), as well as with prior decisions of the District Court of Appeal, First District (Alderman v. State, 167 So.2d 635 (Fla.App.); McPhee v. State, 254 So.2d 406 (Fla.App.)) on the same point of law. Fla.Const., art. V, § 4, An information charged responden......
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Anderson v. State
...non of the information from the standpoint of 'notice' to the defendant. See, Nelson v. State (Fla.1955), 83 So.2d 687; Alderman v. State (Fla.App.1964), 167 So.2d 635; and Holliday v. State (Fla.App.1958), 104 So.2d 137. See, also, Swindle v. State, Fla.App., 254 So.2d 811. Opinion filed N......
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State v. Fernandez
...(Fla.); State v. Smith, 240 So.2d 807), as well as with prior decisions of the District Court of Appeal, First District (Alderman v. State, 167 So.2d 635 (Fla.App.); McPhee v. State, 254 So.2d 406, (Fla.App.)) on the same point of law. Fla.Const., art. V, § 4, Petitioner (hereinafter referr......
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Fernandez v. State, 70-640
...the commission of acts which constitutes the misdemeanor. There the court noted that The same result was reached in Alderman v. State, Fla.App.1964, 167 So.2d 635. There the defendant was charged with being 'interested in and connected with a lottery, commonly known as Bolita in that she re......