Gray v. State, No. 80-480

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOWART; FRANK D. UPCHURCH, Jr.; COBB; COBB
Citation404 So.2d 388
PartiesArchie B. GRAY, Jr., Appellant, v. STATE of Florida, Appellee.
Decision Date07 October 1981
Docket NumberNo. 80-480

Page 388

404 So.2d 388
Archie B. GRAY, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 80-480.
District Court of Appeal of Florida, Fifth District.
Oct. 7, 1981.

Page 389

James B. Gibson, Public Defender, Mary Sue Donsky and T. R. Mott, Asst. Public Defenders, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Phillip D. Havens and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for appellee.

COWART, Judge.

This case involves the sufficiency of the allegations in an information charging appellant with violation of section 918.14(3)(a)(1), Florida Statutes (1979), prohibiting "tampering with witnesses." The relevant portion of that statute provides:

(3)(a) It is unlawful for any person:

1. To cause a witness to be placed in fear by force or threats of force.

The information alleges that:

ARCHIE BEAUREGARD GRAY, JR. on the 1st day of May, 1979 in said County and State, did, in violation of Florida Statutes 918.14(3)(a), unlawfully cause HILDA RICE, a witness for the State of Florida to be placed in fear by force or threats of force.

The first question relates to the sufficiency of these allegations to allege a crime.

The word "witness," when used as a noun as in this statute, has two meanings that are sufficiently different that the use of one meaning results in the statute applying so broadly that the word witness would have no moment, while the use of the other meaning assumes and requires the existence of certain other ultimate facts not expressly required by the statute. The first meaning of "witness" merely refers to one who has personal knowledge of something. Since every person has personal knowledge of something, to so construe the word "witness" in this statute would equate it with the word "person" and would apply it so broadly as to deprive it of any significant meaning. The second meaning of the word "witness" is more narrow and refers to a person who (a) has given, is giving, is expected, or has been asked or directed, to give (b) testimony (c) in some cause or proceeding (d) before some forum or tribunal.

Page 390

If this second meaning of the word "witness" was intended, then the existence of some investigation, cause, trial or proceeding and of some forum or tribunal is essential as being a part of the meaning of the word witness. Additionally, the forum or tribunal should be limited to official governmental authorities. A list of such forums or tribunals is made a part of a closely related subsection section 918.14(1), Florida Statutes (1979), but a similar list is not contained in subsection 918.14(3)(a)1, Florida Statutes (1979). State v. Murray, 349 So.2d 707 (Fla. 4th DCA 1977). Murray holds that under this statute "it must be alleged that the defendant knew the alleged victim was a witness. Some connection between the actions of the defendant and the fact the alleged victim was witness must also be alleged in order to allege a violation of this statute which is in effect an enhanced penalty statute." Id. at 708 (emphasis added).

In order for a statute proscribing conduct to be constitutional, the legislature must have a legitimate interest in regulating such conduct and the statute enacted must reasonably and rationally relate only to the conduct the legislature intends to prohibit. In the instant case, in order for such statutory prohibition to pass constitutional standards of definiteness and breadth of application so as to avoid encompassing conduct which is essentially innocent, the statute should be more narrowly worded to provide that it is unlawful for any person (1) knowing (2) that a witness may give testimony (3) in some trial, proceeding or investigation, (4) pending or to be instituted in some (specifically described official governmental) forum or tribunal, (5) to cause such witness to be placed in fear (6) by the use of, or threat to use, force, (7) with the intent to cause such witness to withhold testimony or to testify falsely. The statute actually only expressly provides the fifth and sixth elements. Perhaps, by a long reach, elements two, three and four could be inferred from the use of the one word "witness" but the necessity for an element of knowledge (scienter) (being element one above) and intent (being element seven above) was pointed out in Murray in 1977 and the legislature has not acted to supply those omissions. The legislature could not, constitutionally, have intended to punish as a felony all conduct that would literally fall within the expressed statutory definition (elements five and six above). 1

An information alleging in proper form material and relevant ultimate facts which, if proven, would establish all of the constituent elements set forth in a constitutionally sufficient statutory criminal offense ought to be sufficient to charge that offense. In this case the information does allege facts relating to all of the elements expressly required by this statute, but it does not allege all elements essential to constitute the crime. When a court construes a statute defining a...

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16 practice notes
  • Baker v. State, No. 80-748
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1982
    ...See, e.g., Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981); Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981); Gray v. State, 404 So.2d 388 (Fla. 5th DCA 17 "The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the sam......
  • Torrence v. State, No. 80-470
    • United States
    • Court of Appeal of Florida (US)
    • October 4, 1983
    ...crime of which he is convicted, and (2) if so, is there an adequate record of affirmative action constituting a waiver. In Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), this court held that the statutory offense prohibiting tampering with a witness (§ 918.14(3)(a)(1), Fla.Stat. (1981)) ......
  • State v. Gray, No. 61381
    • United States
    • United States State Supreme Court of Florida
    • July 21, 1983
    ...Judicial Circuit, Daytona Beach, for respondent. BOYD, Justice. The State of Florida seeks review of the decision in Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), which reversed respondent's conviction on the ground that the information by which he was charged failed to allege all essen......
  • Williams v. State, No. 80-1368
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 1982
    ..."lawful custody." They infer, however, that proof of the circumstances of the arrest will be required at trial. 1 See Gray v. State, 404 So.2d 388 (Fla. 5th DCA 2 As cogently stated by the supreme court in Lynch v. State, 293 So.2d 44 (Fla.1974): A defendant, in moving for a judgment of acq......
  • Request a trial to view additional results
16 cases
  • Baker v. State, No. 80-748
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1982
    ...See, e.g., Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981); Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981); Gray v. State, 404 So.2d 388 (Fla. 5th DCA 17 "The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the sam......
  • Torrence v. State, No. 80-470
    • United States
    • Court of Appeal of Florida (US)
    • October 4, 1983
    ...crime of which he is convicted, and (2) if so, is there an adequate record of affirmative action constituting a waiver. In Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), this court held that the statutory offense prohibiting tampering with a witness (§ 918.14(3)(a)(1), Fla.Stat. (1981)) ......
  • State v. Gray, No. 61381
    • United States
    • United States State Supreme Court of Florida
    • July 21, 1983
    ...Judicial Circuit, Daytona Beach, for respondent. BOYD, Justice. The State of Florida seeks review of the decision in Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), which reversed respondent's conviction on the ground that the information by which he was charged failed to allege all essen......
  • Williams v. State, No. 80-1368
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 1982
    ..."lawful custody." They infer, however, that proof of the circumstances of the arrest will be required at trial. 1 See Gray v. State, 404 So.2d 388 (Fla. 5th DCA 2 As cogently stated by the supreme court in Lynch v. State, 293 So.2d 44 (Fla.1974): A defendant, in moving for a judgment of acq......
  • Request a trial to view additional results

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