Gaetano v. State
| Decision Date | 08 February 1973 |
| Docket Number | No. 72--455,72--455 |
| Parties | Donald GAETANO, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Max Lurie, of Lurie & Capuano, Miami, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant-defendant, Donald Gaetano, Jr., appeals a judgment and sentence following an adjudication of guilt in a nonjury trial on a charge of unlawfully keeping, exercising or maintaining a gambling house. We reverse.
The defendant was charged by information in count one thereof with bookmaking and in count two of the information with unlawfully keeping, exercising or maintaining a gambling house in Ft. Lauderdale, Florida. At trial, it was revealed that the defendant, who had been under observation for some time, was often seen entering the rear of a single family residence (later determined to be divided into two apartments). This house was suspected to be the location of a bookmaking operation. Police officers obtained a search warrant, entered the house and arrested the defendant. In searching the house, the officers found and seized two copies of the New York Daily News racing results, some sheets of 'water soluble' paper, a bucket filled with water and containing a white gelationous mass, a telephone, a bank loan payment book, Harvey Ames Clocker Handicap selections, one yellow pad, and pencils. During the time the house was being searched by the officers, there were four incoming telephone calls. The telephone calls were answered by one of the officers. Two of the callers were female and asked for 'Don' and upon being told that he was busy, hung up. The third caller hung up without speaking immediately after the phone was answered, the fourth caller asked for a 'line,' and the officer gave the caller a made-up 'line.' Subsequently, the yellow pad seized in the search was delivered to the Dade County Crime Laboratory for reconstructing impressions made upon the paper of the yellow pad. The impressions as reconstructed revealed names of football teams with numbers after the team's name (e.g., Boston plus 16, minus 55/50, minus 50, etc.). There was no testimony establishing by whom or when the written impressions reconstructed from the yellow pad were made thereon.
At conclusion of the case, the defendant, having elected not to put on any testimony in his behalf, moved the trial court for a judgment of acquittal as to both counts of the information. The trial court granted the motion as to count one of the information (bookmaking), denied the motion as to count two of the information (keeping, etc., a gambling house), adjudged the defendant guilty as to count two, and sentenced the defendant to a term of imprisonment. It is from the judgment and sentence entered on count two of the information that the defendant appeals.
The thrust of the appeal is whether the evidence is legally sufficient to sustain the judgment and sentence.
When reviewing the sufficiency of the evidence, an appellate court must affirm the conclusion or decision of the trier of fact where there is substantial, reasonable evidence in support of the verdict, notwithstanding the fact that the court would have reached a different conclusion. Substantial evidence means more than mere suspicion, Smith v. State, 101 Fla. 1066, 132 So. 840 (1931), and there must be evidence that proves every...
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Tibbs v. State
...Since every material element of the offense was not proven, the evidence was insufficient to support a conviction. See Gaetano v. State, 273 So.2d 84 (Fla.4th DCA 1973); Parnell v. State, 218 So.2d 535 (Fla.3d DCA 1969). In Woodward the court granted a new trial "in view of the uncertaintie......
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D. J. v. State, 74--800 and 74--724
...that of guilt.' Brown v. State, 1937, 127 Fla. 225, 172 So. 921; Miller v. State, Fla.App.1972, 270 So.2d 423, 424; Gaetano v. State, Fla.App.1973, 273 So.2d 84, 86; Whitehead v. State, Fla.App.1973, 273 So.2d 146, 147, 148; Harris v. State, Fla.App.1974, 307 So.2d 218, We are of the opinio......
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Harris v. State, 74--1421
...that of guilt.' Brown v. State, 1937, 127 Fla. 225, 172 So. 921; Miller v. State, Fla.App.1972, 270 So.2d 423, 424; Gaetano v. State, Fla.App.1973, 273 So.2d 84, 86; Whitehead v. State, Fla.App.1973, 273 So.2d 146, 147--148. 2 We are of the opinion that the facts sub judice are supportive o......
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State v. Ferguson, 77-973
...at the place in question, Grossman v. State, 59 So.2d 59 (Fla.1952); Mart v. State, 350 So.2d 1123 (Fla. 3d DCA 1977); Gaetano v. State, 273 So.2d 84 (Fla. 4th DCA 1973), such proof does not seem to be required for a conviction under the second part. See Vanderhorst v. State, 151 Fla. 620, ......