Battle v. State, 78-100

• Decision Date: 19 December 1978
• Docket Number: No. 78-100,78-100
• Citation: 365 So.2d 1035
• Parties: Jose Miguel BATTLE, Appellant, v. The STATE of Florida, Appellee. Third District
• Court: Florida District Court of Appeals

Page 1035

365 So.2d 1035

Jose Miguel BATTLE, Appellant, v. The STATE of Florida, Appellee.

No. 78-100.

District Court of Appeal of Florida,

Third District.

Dec. 19, 1978.

Rehearing Denied Jan. 22, 1979.

Jack R. Blumenfeld, Miami, Raymond A. Brown, Jersey City, N.J., Alan Silber, East Orange, N.J., for appellant.

Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.

Before HUBBART, KEHOE and SCHWARTZ, JJ.

KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence for conspiracy to commit a felony and solicitation of a felony. Appellant was sentenced to thirty years in the State Penitentiary for each crime, the sentences to run concurrently. He was also fined $5000 for each crime. Of the points raised on appeal by appellant from this judgment and conviction, it is our opinion that two of the points require discussion and reversal.

Appellant contends in one of these points that the trial court erred in entering the final judgment and sentence because, under the facts of this case, Florida had no jurisdiction to convict or punish him for the crime of solicitation.

In support of this contention, appellant makes the following argument: The facts adduced by appellee, the prosecution below, to support the charge of solicitation all took place in the State of New Jersey. It is undisputed that the only connection which Florida had with the facts presented is that the victim of the crime was in Florida and that Carlos Hernandez (not a party herein) took a trip to Florida after the solicitation was made, allegedly for the purpose of committing the crime solicited. Appellant argues that this, by itself, was not sufficient to give Florida jurisdiction.

It is appellee's position that appellant's conduct outside Florida constituted an Attempt to commit an offense within Florida; therefore, appellant was subject to prosecution in Florida, even if the pertinent acts occurred wholly outside Florida. In support of this position, appellee relies upon Section 910.005(1)(b), Florida Statutes (1975).

The record supports the facts asserted in appellant's argument. From this argument, it appears that the heart of appellant's defense is that the crime of solicitation is complete after the solicitation is made, and requires no acceptance by the person solicited. The actions of the person solicited are irrelevant to the crime of solicitation. Although neither appellant nor appellee have cited us to any Florida authority directly on point, nor has our research revealed any, this proposition is supported in LaFave and Scott, Criminal Law, 414-22 (1972); and Perkins, Criminal Law, 582 (2d Ed. 1969).

In our opinion, the solicitation was complete after it was made and no element of the crime of solicitation took place in Florida; therefore, Florida was without jurisdiction to try appellant for this offense. In this case, although the acts solicited were to be performed in Florida, the crime charged in the indictment of solicitation was committed wholly outside Florida. Thus, contrary to appellee's contention, Section 910.005(1)(b), Florida Statutes (1975), did not confer jurisdiction in the Florida courts. See generally Annot., 56 A.L.R.2d 953 (1957).

In another of appellant's points on appeal, he contends that the trial court erred in denying his pretrial motion to dismiss the conspiracy count of the indictment (Count I) on the grounds that the wording was vague and did not inform him of the charges against him to the extent that he could properly prepare his defense or protect himself against being placed in jeopardy.

The contentious part of the indictment reads as follows:

". . . (T)hat beginning on the first day of February, 1976, and continuing through the 18th day of June, 1976, . . . Jose Miguel Battle did unlawfully and feloniously agree, conspire, combine or confederate...