McCoy v. State, 75--2280
| Decision Date | 17 September 1976 |
| Docket Number | No. 75--2280,75--2280 |
| Citation | 338 So.2d 52 |
| Parties | Linda McCOY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Marc L. Lubet, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Linda McCoy, appeals a judgment of guilty and imposition of sentence for the crime of perjury. We reverse.
We glean from the proceedings before the trial court that appellant on January 31, 1975 was subpoenaed to be and appear before the state attorney or his lawfully appointed assistant state attorney to testify as to any violations of the criminal laws upon which appellant might be interrogated. It further appears that pursuant to the subpoena, the appellant appeared before an assistant state attorney, was placed under oath, given immunity from any crime to which she testified and gave information. Prior to appellant's interrogation, the court reporter informed the assistant state attorney that she could not stay and take a lengthy statement from the appellant as she had prior commitments that afternoon. The assistant state attorney then asked two Orlando police detectives, who were present, to take the appellant over to the Orlando Police Department and for them to take appellant's statement in their office.
Appellant was then escorted by the Orlando police from the state attorney's office over to the Orlando Police Department, which was several blocks away. While at the Orlando Police Department, appellant was interrogated by the Orlando police officers without any further oath being administered. The statement given by the appellant was recorded by a mechanical device.
Subsequently thereafter, on February 28, 1975 appellant was subpoenaed by the Public Defender of Orange County, Florida, for the purpose of taking her deposition in a criminal proceeding in the Circuit Court of Orange County. After having been placed under oath, appellant made a statement as to certain burglaries she had knowledge of, and her knowledge of the participation of David S. Rohn and James Harold Rohn in the burglary in question.
On January 31, 1975, when questioned by the two Orlando police officers, appellant had stated that she had knowledge of a burglary at Bell Rental and Sales, Inc. at 5028 South Orange Avenue, Edgewood, Florida, that had occurred on November 28, 1974, and that the above named Rohn brothers had participated in that burglary. At the taking of appellant's deposition on February 28, 1975, appellant stated that she had no knowledge of the burglary at Bell Rental and Sales, Inc. on November 28, 1974, and that the Rohn brothers had not participated in that burglary.
Thereafter an information was filed, charging appellant with perjury by contradictory statements made under oath. Appellant by motion then moved to dismiss the information. The motion came on for hearing before the trial court, which motion was apparently treated by the trial court and the parties as a motion to dismiss, pursuant to Florida RCrP 3.190(c)(4), though not technically in compliance with Florida RCrP 3.190(c)(4). The trial court denied the motion to dismiss. Appellant then entered a plea of nolo contendere, reserving the right to appeal denial of the motion to dismiss. The trial court then adjudged appellant guilty of the crime of perjury by contradictory statements, and sentenced her to a term of years in the state prison. This appeal then followed.
Florida RCrP 3.190(c)(4) provides for dismissal of an information upon defendant's motion when there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. Perjury by contradictory statements, as set forth by Section 837.021, Florida Statutes 1975, consists of two or more material statements...
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