Cabe v. State

• Decision Date: 11 January 1982
• Docket Number: No. YY-364,YY-364
• Citation: 408 So.2d 694
• Parties: Steven H. CABE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 694

408 So.2d 694

Steven H. CABE, Appellant, v. STATE of Florida, Appellee.

No. YY-364.

District Court of Appeal of Florida, First District.

Jan. 11, 1982.

Rehearing Denied Jan. 27, 1982.

Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant seeks review of a judgment of conviction and sentence based upon a jury verdict finding him guilty of the crime of false imprisonment. See Section 787.02, Fla.Stat. (1977). Five points are presented. We affirm as to all points raised but one, which we reverse, and therefore remand the case for new trial.

The defendant first urges that his motion to dismiss the information should have been granted because it was improperly signed and filed by an assistant state attorney rather than by the state attorney. The information was filed after the repeal of Section 27.324, Florida Statutes, by Ch. 77-104, § 14, Laws of Florida, which had permitted assistant state attorneys to sign and file informations, but before the effective date of the amendment to Section 27.181(3), Florida Statutes (Supp.1980), which now prohibits them from so doing. Before the filing of the information in the instant case, however, the Supreme Court of Florida amended Rule 3.140(g), Florida Rules of Criminal Procedure, to provide that a designated assistant state attorney may sign a felony information. Appellant's position that the subject matter of the rule is a matter of substance rather than of procedure, and it is therefore ineffective, has been rejected by the court of appeal for the Third District in State v. Rivero, 400 So.2d 34 (Fla. 3d DCA 1981). We fully concur in the decision and the reasoning of the court in Rivero, and therefore conclude that no error has been shown. See also State v. Miller, 313 So.2d 656 (Fla.1975).

Next, appellant argues that because he was charged by information only with kidnapping pursuant to Section 787.01(1)(a), Florida Statutes, he could not be convicted of false imprisonment because it is not a lesser-included offense of kidnapping. We reject this contention. The seminal case of Brown v. State, 206 So.2d 377 (Fla.1968) listed the four possible types of lesser included offenses:

1. Crimes divisible into degrees;

2. Attempts to commit offenses 3. Offenses necessarily included in the offense charged;

4. Offenses which may or may not be included in the offenses charged, depending on the accusatory pleading and the evidence.

On April 16, 1981, the Florida Supreme Court by order adopted the recommendation of its Committee on Standard Jury Instructions in Criminal Cases to treat lesser degree offenses (category 1) as category (3) or (4) offenses, depending on the offense, and to treat attempts as a category (4) offense which eliminated the first two Brown categories and left the following regrouping:

(1) Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses;

(2) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.

See, In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Instructions in Misdemeanor Cases, no. 57,734 (Fla., April 16, 1981), as modified by In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, no. 58,799 (Fla., June 5, 1981). Those orders also adopted a schedule of lesser included offenses in which false imprisonment was listed as a category (1) lesser included offense of kidnapping. See Florida Standard Jury Instructions in Criminal Cases, at 260. Although that schedule was not effective until October 1, 1981, and not directly applicable to the instant case, we can only conclude from the approved schedule that the Florida Supreme Court, before its adoption, considered false imprisonment either a category (1) or a category (3) lesser included offense under Brown. This conclusion is inescapable as the new categorization of lesser included offenses neither subtracts from nor adds to the Brown categories; it merely reorganized the existing categories in Brown.

The third point raised asserts that error resulted from the court's instruction on the evidence of flight. We conclude, however, that the evidence was sufficient to support the instruction. See Batey v. State, 355 So.2d 1271 (Fla. 1st DCA 1978).

Appellant's next point alleges the trial court committed error in denying defendant's motion for a psychiatric evaluation before imposing an enhanced sentence. The motion was apparently made pursuant to either Rule 3.720(a)(1) or 3.740, Florida Rules of Criminal Procedure, because the defendant made no attempt to...