Nell v. State
| Decision Date | 11 April 1973 |
| Docket Number | No. 42833,42833 |
| Citation | 277 So.2d 1 |
| Parties | Richard NELL et al., Petitioners, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Joseph A. Varon, Varon, Stahl & Kay, Hollywood, for petitioners.
Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for respondent.
This cause is before this Court on certiorari granted to review the decision of the District Court of Appeal, Second District, in Nell et al. v. State of Florida, reported at 266 So.2d 404, Fla.App., which purportedly conflicts with the decisions of this Court in Streeter v. State, 89 Fla. 400, 104 So. 858 (1925), Brunson v. State, 70 Fla. 387, 70 So. 390 (1915), Colson v. State, 71 Fla. 267, 71 So. 277 (1916), and Raines v. State, 65 So.2d 558 (Fla.1953). We have considered the cases cited for conflict and have determined that we have jurisdiction pursuant to Article V, § 3(b)(3), Florida Constitution, F.S.A. (1973).
Petitioners were informed against, tried before a jury, and convicted of bribery as set forth in Section 838.011, Florida Statutes, (1969) F.S.A. 1
Upon appeal, the District Court of Appeal, Second District, affirmed the conviction in a lengthy decision directed solely to the question of whether an alleged bribe must involve a service within the scope of an official's duty in order to constitute a statutory violation. The majority decision was supported by two Judges, but there was a comprehensive dissenting opinion opinion that bribery under Section 838.011 occurs upon the corrupt offer to a public officer Only when the object sought to be accomplished comes within the scope of the official's public capacity or duty.
The record indicates that a labor union, namely the Operating Engineers Union, was the owner of approximately fourteen acres of land in Collier County, south of Naples, abutting a creek known as Henderson Creek off of the Isle of Capri Road. On this land the union planned to develop a recreational facility for its members. The union began to dig a lake on the property, but stopped at the request of the County Commission, who subsequently allowed the project to continue when it appeared that dredging the lake without a permit was not unlawful. Later, the union sought to dig a canal from the lake on their land to Henderson Creek which would not cross the salinity line. The salinity line is the line landward of which no sea level canal can be dug and prevents the salt water from invading the fresh water.
There was in effect in Collier County a County Ordinance No. 70--2 which established a salinity line and which provided in pertinent part as follows:
'It shall be unlawful for any person, group, corporation or other entity of any kind to make, dig or construct any canal or other excavation of any kind across and landward of the salinity line above described, which canal or excavation is connected to, extends into or is a part of any body of salt water or sea water without first obtaining a written permit to do so from the Board of County Commissioners.'
On April 21, 1970, Petitioner, Wells met with one Hancock, a County Commissioner of Collier County, at the property owned by the union. At the site Petitioner Wells, pointed out to Hancock on a survey of the land where the lake had been dug and where the union desired to dig the canal from the lake to Henderson Creek landward of the salinity line. The same morning Petitioners, Nell and Wells, appeared at a meeting of the Board of County Commissioners where they made a request to dig a canal from the Henderson Creek area landward of the salinity line. Relative to the request of Petitioners, Nell and Wells, Hancock read into the transcript of testimony the following excerpts from the minutes of this County Commission meeting,
As explained by Hancock, the procedure for getting a permit under Ordinance No. 70--2 would require application for the permit to be submitted to the County Engineers who would make recommendation to the Board of County Commissioners who would consider the application in the ordinary course of business of the Commission. No application had ever been submitted to the County Engineer or to the Commission by the union or by any of the Petitioners on behalf of the union for the issuance of a permit for the digging of a canal from the lake on the union's land to Henderson Creek.
Any requests for the digging of a canal limited the digging to behind the salinity line, landward of such line.
Commissioner Hancock testified that there was no request to move the salinity line and that Since the canal would not cross the salinity line a permit was unnecessary.
The basis of this prosecution of Petitioners for violation of Section 838.011, Florida Statutes, F.S.A., was that Petitioners, who were members of the aforestated labor union gave one of the County Commissioners, A. C. Hancock, $1,000.00 to influence the granting of a permit to dig a canal.
In its decision affirming the convictions of Petitioners, the District Court determined that the question whether a permit was required in the instant case was irrelevant to the issue in this bribery prosecution since, it opined,
The District Court specifically announced that its decision was not in accord with the past decisions of this Court in Streeter v. State, supra, Brunson v. State, supra, Colson v. State, supra. This Court in those cases subscribed to the doctrine that in order for one to be convicted under the Bribery Statute the matter sought to be influenced must be within the scope of an officer's legal duties.
The issue to be decided in this cause is whether our Bribery Statute covers all actions of a public official, or whether it encompasses only those actions that are within his power to decide--actions within his 'official capacity'.
Our Legislature abrogated the common law in relation to the crime of bribery or attempted bribery by enacting statutes applicable thereto. Statutes in derogation of the common law and penal statutes should be strictly construed and if there is any doubt as to their meaning, the court should resolve the doubt in favor of the citizen. State v. Coleman, 131 Fla. 892, 180 So. 357 (1938). To charge one with an offense defined by statute, the accused must be plainly and unmistakably placed within the criminal statute and all reasonable doubts are resolved in his favor. Gibbs v. Mayo, 81 So.2d 739, 740 (Fla.1955), Catanese v. State, 251 So.2d 572 (Fla.App.1971).
Section 838.011, Florida Statutes, F.S.A., provides that,
'Any person who shall corruptly give, offer or promise to any public officer . . . any commission, gift, gratuity, money, property, or other valuable thing . . . with the intent or purpose to influence the act, vote, opinion, decision, judgment or behavior of such public officer . . . on any Matter, question, cause or proceeding which may be pending or may by law be brought before him in his public capacity, or with the intent or purpose to influence any act or omission relating to any Public duty of such public officer . . . or with the intent or purpose to cause or induce such public officer, agent, servant or employee to use or exert or to procure the use or exertion of any influence upon or with any other public officer, agent, servant or employee in relation to any matter, question, cause or proceeding that May be pending or may be law be brought before such other public officer, agent, employee or servant, shall be guilty of the crime of bribery.'
The formal accusation made against Petitioners followed the proscription of the statute with the express charge that Petitioners,
'did corruptly give, offer or promise to a public officer, having knowledge of said public officer's official capacity, towit: A. C. Hancock, a County Commissioner of Collier County, State of Florida, the sum of $1,000.00 good and lawful money of the United States of America, with the intent or purpose to influence the act, vote, opinion, decision, judgment or behavior of A. C. Hancock, on a matter, question, cause or proceeding which may be pending before him in his Official capacity as a County Commissioner, Or may by law be brought before him in his public capacity as a County Commissioner, such matter, question, cause or proceeding, concerning the salinity line in Collier County.'
The elements of the offense of bribery are as follows: (1) knowledge on the part of the accused of the official capacity of the person to whom the bribe is offered, (2) the offering of a thing of value, and (3) the intent to influence the Official action of the person to whom the bribe is offered. Azrak v. State, 183 So.2d 712, (Fla.App.1966), Brunson v. State, supra, Colson v. State, supra.
This last element with which we are now primarly concerned has been given a definite interpretation by this Court. See Brunson v....
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