Hudson v. State
| Decision Date | 10 September 1999 |
| Docket Number | No. 98-00343.,98-00343. |
| Citation | 745 So.2d 997 |
| Parties | John Issac HUDSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
John Isaac Hudson pleaded guilty to an attempted lewd and lascivious act1 and possession of a short-barreled shotgun,2 reserving his right to appeal the denial of a motion to suppress and two motions to dismiss. We affirm, discussing only the denial of his motions to dismiss the charge of attempted lewd and lascivious. We conclude that the police may use a decoy victim over the age of 16 and still convict a defendant of attempted lewd and lascivious. We further conclude that Mr. Hudson's acts in this case were sufficient to justify the trial court's denial of his motions to dismiss because the alleged acts crossed the line from preparatory acts to overt acts.
Mr. Hudson placed the following personal advertisement in Hand Jobs magazine:
On April 2, 1997, a New Hampshire police detective responded to the advertisement, representing himself to be a 14-year-old boy named Larry. From that point until May 20, 1997, the detective and Mr. Hudson exchanged many letters. Mr. Hudson wrote to the "boy," graphically describing his sexual proclivities and the sexual acts he would like to perform on the boy. He also mailed "Larry" money, a gay pornographic magazine, and a book on gay sex. Mr. Hudson sent Larry photographs of his apartment and urged Larry to come to Florida to live with him. Many of the letters discussed plans for Larry to travel to Tampa. The letters culminated in Mr. Hudson purchasing a plane ticket for Larry, mailing the plane ticket and $37 in cash, and arranging for Larry's transportation from the airport to Mr. Hudson's house by taxi.
The day Larry was to arrive in Tampa, an undercover Hillsborough County deputy sheriff drove a taxicab to Mr. Hudson's residence, while another deputy sheriff sat in the back seat posing as the boy. When the taxi arrived at Mr. Hudson's home, he walked to the taxi and was arrested. The officers then executed a search warrant of the home. They discovered a multitude of pornographic books, magazines, and movies, and framed photographs of nude young men. All of the items focused on young males. The officers also discovered a bag of sex toys and a short-barreled shotgun.
One of Mr. Hudson's motions to dismiss asserts that the facts do not demonstrate he took an overt step toward the commission of the crime. In another motion to dismiss, he contends that he cannot be found guilty of attempting to commit a lewd and lascivious act when the completed act would have been committed upon an adult police officer. Neither of these motions was made under oath, but both contained factual allegations. Mr. Hudson maintains that his motions did not need to be made under oath because they were brought pursuant to Florida Rule of Criminal Procedure 3.190(b).
There are at least a few instances in which a motion to dismiss can be filed under rule 3.190(b). See, e.g., State v. Smith, 575 So.2d 314 (Fla. 2d DCA 1991); State v. Harden, 384 So.2d 52 (Fla. 2d DCA 1980). In this case, however, it appears Mr. Hudson's arguments boil down to a claim that the facts upon which the State rely do not establish a prima facie case of guilt. Thus, his motions should have been brought pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) and were technically deficient for failing to comply with that rule. See Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995).
At the hearing on the motions, both Mr. Hudson and the State agreed that the probable cause affidavit and attached materials set forth the essential facts the State would present at trial. The parties' agreement as to the facts gave the court an evidentiary basis to evaluate Mr. Hudson's claims. See Archie v. State, 660 So.2d 348 (Fla. 1st DCA 1995). Thus, we have considered these motions as though the State waived any technical non-compliance with rule 3.190(c)(4) and the trial court denied the motions on the merits.
Turning to the issue of whether Mr. Hudson committed a sufficient act to constitute an attempt, the statutory question is whether he did "any act toward the commission of" the offense of lewd and lascivious. See § 777.04(1), Fla. Stat. (1995). Florida case law, in general, focuses on whether a defendant's actions were preparatory or overt. See Morehead v. State, 556 So.2d 523, 524-25 (Fla. 5th DCA 1990). We agree with Mr. Hudson that much of the evidence presented focused on his preparations to commit a crime. Admittedly, the line between preparatory acts and overt acts is difficult to draw and tends to be case specific.3 In this case, we agree that Mr. Hudson was merely in the preparatory stages of the crime when he purchased the advertisement and wrote his initial correspondence to Larry. However, thereafter he wrote numerous letters, mailed Larry a plane ticket and money for travel, arranged for a taxi to bring Larry to his house, and then approached the taxi in order to greet Larry. We conclude that under these circumstances the trial court correctly decided the information charged a crime supported by an overt act. See Smith v. State, 632 So.2d 644 (Fla. 1st DCA 1994) (); see also Van Bell v. State, 105 Nev. 352, 775 P.2d 1273, 1275 (1989) (); Ward v. State, 528 N.E.2d 52 (Ind.1988) ().
Mr. Hudson's case is somewhat similar to State v. Coker, 452...
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State v. Robins, 00-2841-CR.
...child enticement via the internet when the minor child was an adult deputy sheriff posing as a minor child); Hudson v. Florida, 745 So. 2d 997 (Fla. Dist. Ct. App. 1999)(affirming the conviction of a defendant who attempted child enticement by writing letters to a "child" who was actually a......
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United States v. Garcia-Figueroa, 13–40114.
...must point to specific instances where it has been so applied. To meet this burden, Garcia–Figueroa cites two cases, Hudson v. State, 745 So.2d 997 (Fla.Dist.Ct.App.1999), and Smith v. State, 632 So.2d 644 (Fla.Dist.Ct.App.1994). Neither of these cases, however, shows a realistic probabilit......
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Bist v. State Of Fla.
...distinction between a preparatory act and an overt act is often difficult and depends on the facts of each case. 2 Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999). In Wiggins v. State, 816 So.2d 745, 747 (Fla. 4th DCA 2002), the court held that Wiggins committed an overt act towards......
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Mizner v. State, 2D13–1917.
...omitted). “[T]he line between preparatory acts and overt acts is difficult to draw and tends to be case specific.” Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999). In reviewing the facts in this case, two reasons lead us to conclude that Mr. Mizner's conduct constituted mere prepara......