Allen v. State, 45675
| Decision Date | 10 December 1975 |
| Docket Number | No. 45675,45675 |
| Citation | 326 So.2d 419 |
| Parties | James Leroy ALLEN, Appellant, v. STATE of Florida, Appellee. Julius Terry MULLINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Steadman S. Stahl, Jr., of Varon, Stahl & Kay, Hollywood, and Archie Odom, Port Charlotte, for appellants.
Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for appellee.
These consolidated cases are before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973), and an improper identification procedure which allegedly made an independent identification at trial impossible.
Appellant Allen was charged in a three-count information. The first two counts allege (1) an aggravated battery upon Sam Kirkland and (2) malicious injury or damage to real or personal property. The third count charged appellant with the riot offense, and reads in its entirety as follows:
'JAMES LEROY ALLEN, did then and there riot, or incite a riot, or encourage a riot.'
Appellant Mullins was charged in a four-court information. The first three counts allege (1) an aggravated battery upon Sam Kirkland, (2) an aggravated battery upon Ralph Cunningham, and (3) resisting a law enforcement officer with violence. The fourth count charged the appellant, Mullins, with the riot offense and reads in its entirety as follows:
'JULIUS TERRY MULLINS, did then and there riot, or incite a riot, or encourage a riot.'
Each of the appellants moved to dismiss the riot count of his respective information on the grounds that:
'. . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines . . ..'
The trial court denied the motions to dismiss. The constitutional issue gives this Court jurisdiction. 1 Having proper jurisdiction, we may proceed to dispose of all other issues properly presented in this appeal. 2
Appellant Allen entered a plea of nolo contendere to Count 3 charging riot, preserving 'any appealable points.' Upon the plea being entered, the State nolle prossed Count 1, aggravated battery, and Count 2, malicious damage to real or personal property. Allen was sentenced to five years imprisonment.
Appellant Mullins was tried by a jury, which returned its verdict of guilty to Count 1, aggravated battery upon Sam Kirkland, and to Count 4, inciting a riot. Mullins was found not guilty of Count 2, aggravated battery upon Ralph Cunningham, and of Count 3, resisting arrest with violence. He was sentenced to five years imprisonment on each of Counts 1 and 4, with the sentences to run concurrently.
With reference to the constitutional issue, we hold the riot statute, Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley, 317 So.2d 750 (Fla.1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in each of these cases is insufficient to properly charge a riot offense under Section 870.01(2), Florida Statutes (1973). The plea of nolo contendere admits, for the purpose of the case, all the facts which are well-pleaded and only those. Chesebrough v. State, 255 So.2d 675 (Fla.1971); Peel v. State, 150 So.2d 281 (Fla.App.2d 1963). The charge is not well-pled. Both defendants properly preserved the issue on appeal. Their respective convictions under the riot counts must be reversed, without prejudice to the State to file amended informations.
The second issue concerns a pretrial identification procedure which clearly was impermissible. The trial court, after an extensive hearing, ruled that the identification procedure was improper and that any evidence of such out-of-court identification would be excluded from the trial of the defendants, Allen and Mullins.
Numerous eyewitnesses at the trial of Mullins made in-court identifications, including the victim and a deputy...
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Corn v. State, 46922
...said, a 'plea of nolo contendere admits, for the purpose of the case, all the facts which are well-pleaded and only those.' Allen v. State, 326 So.2d 419 (Fla. 1975). A conviction predicated on a plea to an information which fails to charge a crime is a nullity. Allen v. State, supra; Kelly......
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Spears v. State
...to the validity of a state statute. Accordingly, we have jurisdiction. Wooten v. State, 332 So.2d 15 (Fla., 1976); Allen v. State, 326 So.2d 419 (Fla. 1975)(reh. den. 1976); Kelly v. State, 323 So.2d 565 (Fla. 1975); Baker v. State, 323 So.2d 556 (Fla. 1975); Singletary v. State, 322 So.2d ......
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Whitted v. State
...jurisdiction with respect to the constitutional issues we are also empowered to determine the remaining points on appeal. Allen v. State, 326 So.2d 419 (Fla.1975). Because appellant failed to raise the first issue in either of his motions to dismiss in the trial court, thus preserving it fo......