Mobley v. State, s. 59051

• Decision Date: 28 January 1982
• Docket Number: 59359 and 59725,Nos. 59051,s. 59051
• Parties: Autley MOBLEY, Appellant, v. STATE of Florida, Appellee. David Leroy BROWN, Appellant, v. Louie L. WAINWRIGHT, etc., Appellee. Jerry STYLES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1031

409 So.2d 1031

Autley MOBLEY, Appellant, v. STATE of Florida, Appellee.

David Leroy BROWN, Appellant, v. Louie L. WAINWRIGHT, etc., Appellee.

Jerry STYLES, Appellant, v. STATE of Florida, Appellee.

Nos. 59051, 59359 and 59725.

Supreme Court of Florida.

Jan. 28, 1982.

Jack O. Johnson, Public Defender and Douglas A. Lockwood, Asst. Public Defender, Bartow, Florida, for appellants.

Jim Smith, Atty. Gen. and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

BOYD, Justice.

We have before us three consolidated appeals resulting from a prison riot which occurred on the second floor of the Pinellas County jail on September 15, 1979. We have jurisdiction because the trial judge upheld the constitutionality of section 870.03, Florida Statutes (1979). Art. V, § 3(b) (1), Fla.Const. (1972).

Autley Mobley, David Brown, Jerry Styles, and a few other inmates on the second floor of the Pinellas County jail planned an escape. Pursuant to this plan the two guards working on that floor, Kenneth Will and Joseph Sandville, were grabbed, tied up, and placed in one of the cells. Then the defendants and their cohorts began trying to pry some bars loose from a window and releasing all the other inmates. Joseph Ciarciaglino, a private attorney who had entered the second floor to visit a client, was also taken captive and placed with the two guards. Soon the inmates realized that their activities had been discovered and that the police had surrounded the prison. At this point bedlam broke loose. Some inmates ransacked and set fire to the chaplain's office while others armed themselves with broken broom and mop handles. Mr. Ciarciaglino was taken to a window to negotiate for the prisoners and threats were made against the guards. Later some other inmates not involved in the attempted escape locked themselves and the two guards in another cell. Then the police stormed the floor, freed Ciarciaglino, and forced all the inmates into one cell. The whole ordeal lasted about three hours.

Mobley, Brown, and Styles were charged with rioting, attempted escape, and kidnapping. Mobley and Brown were each charged with three counts and Styles with two counts of kidnapping. Despite their objections their cases were consolidated for trial. Declaring section 870.03 constitutional, the trial judge denied their motions to dismiss the rioting portion of the information. The jury found each of them guilty of all the charges, and the trial judge sentenced each defendant to fifteen years for escape, five years for rioting, and twenty-five years for each count of kidnapping, with the sentences to run consecutively. The judge retained jurisdiction over the first third of each defendant's sentence pursuant to section 947.16(3), Florida Statutes (1979).

Mobley timely filed a notice of appeal with this Court. Styles timely filed a notice of appeal with the District Court of Appeal, Second District, which later transferred the case to this Court. Brown's notice of appeal filed with this Court was dismissed for being untimely filed, but he was allowed to file a belated appeal by petitioning for a writ of habeas corpus, pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Once all three appeals were properly before us, we consolidated them for purposes of this opinion.

Appellants raise several points on appeal. They argue that section 870.03 is unconstitutional; that the informations charging them with rioting were invalid for failure to state an essential element of the crime; that the court erred in imposing judgments and sentences for kidnapping because the kidnappings were incidental to the offense of attempted escape; that the court abused its discretion in limiting cross examination of a state's witness; and that the court erred in retaining jurisdiction over one third of each of their sentences pursuant to section 947.16(3).

In addition appellant Styles raises two more points: whether there was sufficient independent proof of his involvement in the conspiracy to escape to justify the admission of hearsay testimony under the co-conspirator exception to the hearsay rule and whether there was sufficient evidence to support his convictions for kidnapping. Since we find no reversible errors, we affirm the convictions and sentences, but we remand these cases to the trial judge to explain why he retained jurisdiction over the first third of each appellant's sentence.

Appellants argue that section 870.03 is unconstitutionally vague and that it violates their right to freedom of assembly. These arguments mimic the arguments found wanting in State v. Simpson, 347 So.2d 414 (Fla.1977), appeal dismissed, 434 U.S. 961, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), and State v. Beasley, 317 So.2d 750 (Fla.1975). In Beasley we upheld the constitutionality of section 870.01(2), Florida Statutes (1973), which prohibits riots, by construing the statute in terms of the common law definition of riots. Similarly, in Simpson we adopted the common law definition of unlawful assembly in construing section 870.02 so as to render it constitutional. We construed section 870.02 as prohibiting "(1) an assembly of three or more persons who, (2) having a common unlawful purpose, (3) assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace." 347 So.2d at 415 (footnote omitted).

This definition also applies to section 870.03 which reads:

If any persons unlawfully assembled demolish, pull down or destroy, or begin to demolish, pull down or destroy, any dwelling house or other building, or any ship or vessel, each of them shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Since participating in an unlawful assembly is a misdemeanor, it is obvious that the purpose of this section is to provide a more severe punishment for those participants in unlawful assemblies who begin to destroy a building or ship. Because we construe this section to include the common law elements of unlawful assembly, we find that it is not unconstitutionally vague and that it does not violate the first amendment right to freedom of assembly. State v. Simpson.

Appellants next claim the court erred in not dismissing the rioting count of the information for its failure to allege the statutory elements and to specify the facts showing them. See State v. Simpson; State v. Beasley. An information should not be dismissed unless it "is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense." Fla.R.Crim.P. 3.140(o ). In this case the informations charged that the appellants

while in the Pinellas County Jail did then and there unlawfully assemble with two or more persons and did demolish, pull down or destroy, or begin to demolish, pull down or destroy a building, to-wit: the Pinellas County Jail, 401 Markley Street, Clearwater, Pinellas County, Florida.

Unlike the informations in Simpson and Beasley, these informations did allege with sufficient precision and particularity the facts which constituted the crime. Appellants were neither misled nor embarrassed in the preparation of their defenses nor exposed to double jeopardy. Therefore the court did not err in denying their motions to dismiss the informations.

As their third point appellants claim that their kidnapping convictions should be reversed since their conduct in confining the guards and the attorney was merely incidental to their attempted escape. Appellants were convicted under Florida's new kidnapping statute, section 787.01, Florida Statutes (1979), ¹ which has not yet been construed by this Court. Specifically, appellants were convicted under subsection 787.01(1)(a)2., which prohibits the unlawful confining of another person with the intent to commit or facilitate the commission of any felony. If construed literally this subsection would apply to any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery. Appellants cite three district court of appeal cases which have resolved this dilemma by construing this subsection not to include confinement that is inconsequential or inherent in the nature of the related felony. See Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA 1980); Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980); See also Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980).

The prevalent view nationwide is that kidnapping statutes, regardless of their wording, do not apply to unlawful confinements or movements incidental to other felonies. ² Most courts have reasoned that the legislatures did not intend for the statutes to be literally applied. ³ Some reasoned that a narrow construction of the statutes was necessary to prevent the abuse of prosecutorial discretion. ⁴ One court has suggested that a literal application of its kidnapping statute would be a violation of due process. ⁵ Despite the uniform consensus that kidnapping statutes should not be applied to those confinements or movements of other persons which are merely incidental to the commission of another crime, there is a great discrepancy among the various courts as to when such confinements and movements become more than incidental. ⁶

Situations where prisoners have confined persons against their will with the intent of escaping from prison present their own special problems. ⁷ The courts have not hesitated to uphold kidnapping convictions where a prisoner forces another person to accompany him off prison grounds, ⁸ and where a prisoner confines someone after he has escaped from the prison. ⁹ A problem arises when, during an escape attempt, a prisoner confines or moves another person within the prison...