Bazarte v. State, 691

• Decision Date: 28 August 1959
• Docket Number: No. 691,691
• Citation: 114 So.2d 500
• Parties: Peter BAZARTE, Kenneth Hemmerle, and Robert Hemmerle, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 500

114 So.2d 500

Peter BAZARTE, Kenneth Hemmerle, and Robert Hemmerle, Appellants, v. STATE of Florida, Appellee.

No. 691.

District Court of Appeal of Florida, Second District.

Aug. 28, 1959.

Rehearing Denied Oct. 9, 1959.

James A. Weck, Pompano Beach, for appellants, Peter Bazarte and Kenneth Hemmerle.

John M. McCants and J. Cail Lee, Ft. Lauderdale, for appellant, Robert Hemmerle.

Richard W. Ervin, Atty. Gen., and David U. Timin, Asst. Atty. Gen., for appellee.

ALLEN, Chief Judge.

This is an appeal from a verdict of guilty and subsequent conviction and sentence of the appellants on a charge that they did, on the 2nd day of October, 1957, unlawfully and feloniously conspire, etc., to commit a felony other than a capital offense, to-wit: to set up and promote and assist each other in setting up and promoting a lottery commonly called bolita, etc. The information was filed on the 7th day of February, 1958. The particular date alleged in the information is very important in this case as Chapter 833, Florida Statutes, F.S.A., was amended at the regular Legislative Session of 1957, which amendments became effective October 1, 1957. Three additional sections were added to Chapter 833, one of which, Section 833.04, provided for a conspiracy to commit a felony, making the charge a felony whereas prior to this time a conspiracy to commit a crime was a misdemeanor under section 833.01.

The defendants vigorously protested the introduction of any evidence that showed any of their actions prior to the effective date of the amended statutes (Oct. 1, 1957). The trial judge overruled all of these objections and at the conclusion of the trial instructed the jury that if they found that the parties were guilty of conspiracy prior to October 1st, 1957, they could be convicted of a misdemeanor, as such a charge was a lesser included charge in the information under which the defendants were tried and, if the jury should find that such acts were committed after October 1st, that they could be convicted of a felony charge.

The appellants state point IV of their brief as follows:

'Abuse of judicial discretion as to

'(A) Granting a continuance.

'(B) Granting a change of venue.

'(C) Allowing an improper statement of law by prosecution in their opening statement.

'(D) Denial of Appellants' motions to strike testimony.

'(E) Failure to declare a mistrial after jury heard incompetent and inflammatory evidence.

'(F) Admission of improper rebuttal testimony.'

We have read the briefs of counsel as well as the appendices of the parties in addition to all of the testimony adduced below and do not find that harmful error was committed by the trial court under any of the subheads alleged in point IV of the appellants' brief. We should say in passing that we did this despite the fact that the question as stated is not in compliance with the Rules of Appellate Procedure in this State. Fla.App. Rule 3.7, subd. f(4), 31 F.S.A., Reid v. Johnson, Fla.App.1958, 106 So.2d 624; De Fonce Construction Co. v. Ewing, Fla.App.1958, 99 So.2d 718.

Point V of appellants' brief is stated as follows:

'Failure to examine jurors individually as provided in Florida Statutes, 1957, Chapter 913.02 [F.S.A.].'

The record presented does not contain information from which this court can determine the method used by the trial judge in examining the jurors which naturally precludes any further reference to this question.

Point VI of the appellants' brief is as follows:

'Failure to grant the appellant Bazarte immunity under 932.29 Florida Statutes [F.S.A.].'

The transcript of record shows that the defendant, Peter Bazarte, filed a plea of 'not guilty' to the charge of the information under which he was tried. The record does not show any request of Bazarte to withdraw his 'not guilty' pleas but shows a motion to quash the information on the grounds of the alleged immunity. By pleading to the charge, the defendant waived immunity. See State v. Hancock, 146 Fla. 693, 1 So.2d 609; Poppell v. State, 148 Fla. 275, 4 So.2d 331.

Point I of appellants' brief is as follows:

'Is conspiracy prior to October 1, 1957, a lessor included offense within conspiracy to commit a felony, Florida Statutes, Chapter 833.04 [F.S.A.]?'

Point II of appellants' brief reads:

'Did the change in Chapter 833 of the Florida Statutes which was effective October 1, 1957 make this date an essential and material part of the proof of the case?'

The jury was given three separate verdicts applicable to each of the three defendants: (1) Not guilty; (2) Guilty of a misdemeanor; and (3) Guilty of a felony. The court instructed the jury that in order to be guilty of the felony, evidence must show the conspiracy after October 1, 1957.

We do not deem it necessary to answer appellants' point I above stated since the jury found the defendants guilty of the felony as charged in the information.

Some consideration may be helpful at this point, however, which should adequately dispose of both point I and point II raised by appellant.

Article III, section 32 of the Florida Constitution, F.S.A., provides:

'Crimes, effect of repeal or amendment of law--The repeal or amendment of any Criminal Statute shall not effect the prosecution or punishment of any crime committed before such repeal or amendment.'

The Supreme Court of Florida discussed the scope and effect of an amendment to a criminal statute in Whatley v. State, 46 Fla. 145, 35 So. 80. The accused was tried under an indictment which charged that he:

'On the 1st day of December, A.D.1901, in the county and state aforesaid, with force and arms, unlawfully did then and there have carnal intercourse with an unmarried female under the age of sixteen years, to wit, one * * * contrary to the statute in such case made and provided.'

The accused was convicted and after the first sentence imposed was found to be void, the court resentenced him. Whately then brought a writ of error to the Supreme Court assigning as error the lower court's overruling Whatley's motion in arrest of judgment.

Section 2598, Revised Statutes 1892, before its amendment, read as follows:

'Carnal Intercourse with Unmarried Female under Sixteen Years.--Whoever has carnal intercourse with any unmarried female who is under the age of sixteen years shall be punished by imprisonment not exceeding twelve months or by fine not exceeding five hundred dollars.'

This statute was amended by Chapter 4965, page 111, Act approved May 31, 1901, and became effective the same date. The Act as amended stated:

'Carnal Intercourse with Unmarried Female under Eighteen Years.--Whoever has carnal intercourse with any unmarried female who is at the time of such intercourse under the age of eighteen years, shall be punished by imprisonment not more than ten years or by fine not exceeding two thousand dollars, or by both fine and imprisonment.'

The Court noted that it was apparent the indictment was intended to charge an offense under the amendment but worded according to the language of the original act, although the date of the offense in the indictment was December 1, 1901, one day subsequent to the effective date of the amendment. In regard to this matter, the Court stated:

'It is true that, generally speaking, the precise date alleged in the indictment as the day upon which the offense was committed is not material, so that there will be no variance if another day be proved, provided it be prior to the finding of the indictment, and within the statute of limitations. ...