Norris v. State

• Decision Date: 11 June 1971
• Docket Number: No. 70--558,70--558
• Court: Florida District Court of Appeals
• Parties: Charles Franklin NORRIS, Appellant, v. STATE of Florida, Appellee.

Page 746

249 So.2d 746

Charles Franklin NORRIS, Appellant, v. STATE of Florida, Appellee.

No. 70--558.

District Court of Appeal of Florida, Fourth District.

June 11, 1971.

Rehearing Denied July 19, 1971.

Wilfred C. Varn and Thomas M. Ervin, Jr., of Ervin, Pennington, Varn & Jacobs, Tallahassee, and Emerson Allsworth of Allsworth, Doumar & Schuler, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and James M. Adams, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

On the basis of our review of the briefs, the record on appeal and oral argument, we are of the opinion that appellant has failed to demonstrate reversible error with respect to the sufficiency of the information, closing argument of the prosecutor, the instructions to the jury, the necessity of a presentence investigative report, inquiry into mitigating circumstances and the denial of a motion for a new trial. F.S. section 909.06, F.S.A.; Shifrin v. State, Fla.App.1968, 210 So.2d 18; Schoenholtz v. State, Fla.App.1969, 220 So.2d 441; Crossley v. State, Fla.App.1967, 200 So.2d 640; Hall v. State, Fla.App.1965, 179 So.2d 372; Sinclair v. State, Fla.1950, 46 So.2d 453; Peters v. State, Fla.1954, 76 So.2d 147; Victer v. State, Fla.1965, 174 So.2d 544; Melkun v. State, Second District Court of Appeal, 244 So.2d 145, filed February 17, 1971; State v. Owens, Fla.1970, 233 So.2d 389; State v. Contreras, Fla.1969, 227 So.2d 306; State v. Kahler, Fla.1970, 232 So.2d 166; Warren v. State, Fla.App.1969, 227 So.2d 213; F.S. section 918.10(4), F.S.A.; Grace v. State, Fla.App.1968, 206 So.2d 225; Dryden v. State, Fla.App.1968, 214 So.2d 662; Owens v. State, Fla.App.1968, 215 So.2d 627; Dalton v. State, Fla.1949, 42 So.2d 174; Guarino v. State, Fla.1953, 67 So.2d 650; Forceier v. State, Fla.App.1961, 133 So.2d 336; Williams v. State, Fla.App.1959, 109 So.2d 379; Clinton v. State, Fla.App.1958, 100 So.2d 82; Pearsall v. State, Fla.App.1968, 215 So.2d 58, cert. den., 396 U.S. 912, 90 S.Ct. 228, 24 L.Ed.2d 188; 4 B Fla.Dig., Criminal Law 1038(3); Jackson v. State, Fla.App.1958, 107 So.2d 247; Hamilton v. State, Fla.App.1963, 152 So.2d 793; Bell v. State, Fla.App.1965, 178 So.2d 131; Febre v. State, 1947, 158 Fla. 853, 30 So.2d 367; and Johnson v. State, First District Court of Appeal, 242 So.2d 876, opinion filed January 19, 1971.

We are, however, of the opinion that the sentence imposed is not compatible with the jury verdict. The jury verdict does not contain any determination that possession was with intent to harm life, limb or property; the jury having found only that appellant was guilty of unlawful possession contrary to F.S. section 552.101, F.S.A. There is, therefore, no indication as to whether the verdict of the jury was predicated upon a finding that such possession was 'with the intent to harm life, limb or property' as distinguished from a possession which was a 'knowing violation' as set forth in Section 552.22. Under said section a maximum penalty of ten years is provided for possession with the intent to harm life, limb or property; and a maximum penalty of three years is provided for knowingly violating the provisions of Chapter 552, which violation would include possession without a valid permit. The statute contains an ambiguity to the extent that its application should have been clarified prior to the time the jury rendered its verdict. ¹ Any doubt as to the meaning of a penal statute must be resolved in favor of the citizen. 9 Fla.Jur., Criminal Law, § 18.

However reprehensible the acts of appellant may have been we are constrained to hold that because of the jury's failure to make this distinction and the existence of ambiguities within Section 552.22, relating to punishment, which ambiguities were not otherwise clarified prior to rendition of the verdict, that portion of the final judgment imposing sentence is vacated and the cause remanded to the trial court with directions to enter such sentence as the justice of the cause shall require consistent with this opinion. ²

CROSS, C.J., and OWEN and MAGER, JJ., concur.

1 The information as well as the...