Gray v. State

Decision Date07 October 1981
Docket NumberNo. 80-480,80-480
Citation404 So.2d 388
PartiesArchie B. GRAY, Jr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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. 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 crime, elements cannot be properly supplied by inference or taken by intendment. 2 Neither should courts by judicial fiat or decision supply elements essential to a criminal offense but which are omitted by the legislature from the statutory definition. Such a practice constitutes a judicial intrusion into the legislative branch of government and disregards the court's duty to measure statutes against constitutional standards. Without discussing the elements of this offense or mentioning Murray, the Florida Supreme Court in the recent case of Lee v. State, 397 So.2d 684 (Fla. 1981), has held this statute constitutional on the basis that it is sufficiently definite to convey a definite warning as to the conduct proscribed, measured by common understanding and practice. We are, of course, bound by that decision.

Article I, Sec. 16, of the Florida Constitution, as well as comparable federal constitutional provisions, requires that in all criminal prosecutions the accused shall upon demand, be informed of the nature and cause of the accusation against him, and shall be furnished a copy of the charges. This provision, as well as Florida Rule of Criminal Procedure 3.140(d), essentially requires that the charging document in a criminal case must allege the essential facts constituting the offense charged. The facts which are essential are those necessary to show the jurisdiction of the court, to identify the accused (Fla.R.Crim.P. 3.140(d)(2)), to show the time and place of the commission of the offense (Fla.R.Crim.P. 3.140(d)(3)) and facts which, if proved, would establish all of the elements of the offense charged.

The defendant did not move to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c) for its failure to allege all essential elements of this offense. That rule provides in part that "except for objections based upon fundamental grounds every ground for motion to dismiss which is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived." Thus the next question is whether the failure of an information to allege all essential elements of an offense is "fundamental" within the meaning of this rule and the usual rule that only "fundamental error" can be addressed on appeal without first having been presented to, and ruled upon by, the trial court.

We believe that it is constitutionally essential, and therefore fundamentally necessary, for the charging document in a criminal case to allege all of the essential elements of a criminal offense. The "notice" theory of pleading 3 relates only to civil cases. More than merely warning of prohibited conduct, or notifying the defendant that he has been accused, the charging document in a criminal case constitutes a serious assertion by the State that the allegations contained therein are all that is necessary for the State to prove at trial in order to secure a conviction. Further, the allegations of the elements of the offense in the charging document are part of the constitutionally required notice and serve to advise the accused as to the ultimate facts that are to be litigated at his trial. The defense is entitled to rely on the sufficiency of this notice in preparation for trial, calling affirmative and rebuttal witnesses as necessary to put in issue those factual allegations to be actively contested, with assurance that, at trial, the State can present only incriminating evidence probative of the ultimate facts alleged in the charging document. "Essential element" means an ultimate fact essential to the allegation of a criminal offense and when a charging document fails to allege an essential element it...

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16 cases
  • Torrence v. State, 80-470
    • United States
    • Court of Appeal of Florida (US)
    • October 4, 1983
    ...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)) requir......
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    • 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......
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