Ferguson v. State, No. 55974

CourtUnited States State Supreme Court of Florida
Writing for the CourtSUNDBERG; ENGLAND
Citation377 So.2d 709
PartiesCarl A. FERGUSON, Petitioner, v. STATE of Florida, Respondent.
Decision Date06 December 1979
Docket NumberNo. 55974

Page 709

377 So.2d 709
Carl A. FERGUSON, Petitioner,
v.
STATE of Florida, Respondent.
No. 55974.
Supreme Court of Florida.
Dec. 6, 1979.

Enrique Escarraz, III, St. Petersburg, for petitioner.

Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.

SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review State v. Ferguson, 365 So.2d 788 (Fla. 2d DCA 1978), which has passed upon a question certified by the district court to be of great public interest. We are presented with the question of whether habitual use of a person's premises for gambling is an essential element of the second part of section 849.01, Florida Statutes (1975) (keeping gambling houses, etc.). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Petitioner was charged by information with knowingly allowing certain named persons to engage in a game of cards for money or other things of value at his residence on March 5, 1977, contrary to section 849.01, Florida Statutes (1975). The trial court dismissed the information after finding it to be defective for failing to allege that the premises had been Habitually used for gambling. The District Court of Appeal, Second District, reversed the trial court and concluded that although habitual use of the premises was an element of the first part of section 849.01 (the keeping or maintaining of a gambling room or house), habitual use of the premises was not an element of the second part of section 849.01 (the procuring or permitting of any person to gamble at a place over which defendant has control). We hold that habitualness is an element under both parts of section 849.01 and therefore disapprove the decision of the district court.

Page 710

Section 849.01, Florida Statutes (1975), provides:

Whoever by himself, his servant, clerk, or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or (whoever) in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree . . . .

Petitioner argues that section 849.01 contemplates the enterprise or business of gambling as opposed to the occasional or intermittent acts of gambling. The state counters that the decision of the district court contains no novel aspects and is consistent with prior case law.

The leading case of McBride v. State, 39 Fla. 442, 22 So. 711 (1897), states that the purpose and intent of this statute is to prohibit not the gambling itself but the keeping of a house or other place for gambling. Subsequently, at least with regard to the first part of the statute dealing with the keeping or maintaining of a gambling room or house, this Court has required for conviction proof that some game or device condemned as gambling has been habitually played or carried on at a place owned or subject to a defendant's control, with that defendant's knowledge and consent. Grossman v. State, 59 So.2d 59 (Fla.1952); Millman v. State, 55 So.2d 713 (Fla.1951); Creash v. State, 131 Fla. 111, 179 So. 149 (1938); Toll v. State, 40 Fla. 169, 23 So. 942 (1898). This Court has also recognized that a defendant might be charged under this statute in separate counts for maintaining or keeping a gambling room or house and for procuring or...

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38 practice notes
  • Carawan v. State, No. 69384
    • United States
    • United States State Supreme Court of Florida
    • September 3, 1987
    ...that criminal statutes shall be construed strictly in favor of the person against whom a penalty is to be imposed. Ferguson v. State, 377 So.2d 709 (Fla.1979). We have held that " 'nothing that is not clearly and intelligently described in [a penal statute's] very words, as well as man......
  • State v. Smith, Nos. 72633
    • United States
    • United States State Supreme Court of Florida
    • June 22, 1989
    ...been authorized by the legislature. Carawan, 515 So.2d at 165; Palmer v. State, 438 So.2d 1, 3 (Fla.1983); Ferguson v. State, 377 So.2d 709 (Fla.1979); State v. Wershow, 343 So.2d 605, 608 (Fla.1977); Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927). Accord Ball v. United States, 470 U.S. 856, ......
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...a statute must be construed in the manner most favorable to the accused. Palmer v. State, 438 So.2d 1, 3 (Fla.1983); Ferguson v. State, 377 So.2d 709 The rule of strict construction also rests on the doctrine that the power to create crimes and punishments in derogation of the common law in......
  • McNeil v. State, No. SC15–979
    • United States
    • United States State Supreme Court of Florida
    • April 13, 2017
    ...Perkins v. State , 576 So.2d 1310, 1312 (Fla. 1991) (citing Palmer v. State , 438 So.2d 1, 3 (Fla. 1983) ; Ferguson v. State , 377 So.2d 709, 711 (Fla. 1979) ). Applying the rule of lenity to sections 938.08, 938.085, and 938.10, I am compelled to conclude that the costs created by these st......
  • Request a trial to view additional results
38 cases
  • Carawan v. State, No. 69384
    • United States
    • United States State Supreme Court of Florida
    • September 3, 1987
    ...that criminal statutes shall be construed strictly in favor of the person against whom a penalty is to be imposed. Ferguson v. State, 377 So.2d 709 (Fla.1979). We have held that " 'nothing that is not clearly and intelligently described in [a penal statute's] very words, as well as man......
  • State v. Smith, Nos. 72633
    • United States
    • United States State Supreme Court of Florida
    • June 22, 1989
    ...been authorized by the legislature. Carawan, 515 So.2d at 165; Palmer v. State, 438 So.2d 1, 3 (Fla.1983); Ferguson v. State, 377 So.2d 709 (Fla.1979); State v. Wershow, 343 So.2d 605, 608 (Fla.1977); Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927). Accord Ball v. United States, 470 U.S. 856, ......
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...a statute must be construed in the manner most favorable to the accused. Palmer v. State, 438 So.2d 1, 3 (Fla.1983); Ferguson v. State, 377 So.2d 709 The rule of strict construction also rests on the doctrine that the power to create crimes and punishments in derogation of the common law in......
  • McNeil v. State, No. SC15–979
    • United States
    • United States State Supreme Court of Florida
    • April 13, 2017
    ...Perkins v. State , 576 So.2d 1310, 1312 (Fla. 1991) (citing Palmer v. State , 438 So.2d 1, 3 (Fla. 1983) ; Ferguson v. State , 377 So.2d 709, 711 (Fla. 1979) ). Applying the rule of lenity to sections 938.08, 938.085, and 938.10, I am compelled to conclude that the costs created by these st......
  • Request a trial to view additional results

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