State ex rel. Hough v. Popper, s. 44161--44164
| Decision Date | 19 December 1973 |
| Docket Number | Nos. 44161--44164,s. 44161--44164 |
| Citation | 287 So.2d 282 |
| Parties | STATE of Florida ex rel. Robert HOUGH, et al., Petitioners, v. Honorable David POPPER, as Judge of the Circuit Court of the Eleventh Judicial Circuit In and For Dade County, Florida, Respondent. |
| Court | Florida Supreme Court |
Robert J. Beckham, of Beckham & McAliley, Barry Garber, and Louis M. Jepeway, Jr., of Jepeway, Gessen & Jepeway, Miami, for petitioners.
Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
This cause comes before us again by way of petitioners' Motion to Vacate and Motion for Reconsideration, directed to the Supplemental Writ of Mandamus issued by this Court on November 9, 1973. A perusal of this dual motion convinces us that a clarification of our Supplemental Writ is necessary. Oral argument on the motion is dispensed with, pursuant to F.S.A. 3.10(e), 32 F.S.A.
Petitioners were indicted for alleged violations of F.S. §§ 833.04 () and 838.012 (accepting a bribe), F.S.A., with one Edward J. Connell named as a co-conspirator. Prior to this indictment, petitioners had been subpoenaed and required to testify in criminal proceedings against the alleged co-conspirator. After being indicted, petitioners moved for dismissal of the indictment based, inter alia, on a contention that they were immunized from prosecution for the offenses charged, by virtue of the mentioned testimony and pursuant to F.S. § 914.04, F.S.A. This section provides:
'No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, state attorney, or county solicitor, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any Transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, And no testimony so given or produced Shall be received against him upon any criminal investigation or proceeding.' (Emphasis ours).
The trial judge, although explicitly finding that the testimony given under subpoena 'did constitute a link in the chain of evidence necessary to sustain a conviction' (which would require immunity), nevertheless, finding that the testimony was not incriminating in and of itself, denied the motion. Petition for mandamus was filed and our writ was issued, in which we commanded the trial judge to hold an evidentiary hearing to determine whether there was sufficient Independent, unrelated evidence to justify prosecution, as the State suggests there is, and in the absence of such evidence to dismiss the charges.
Petitioners vigorously urge that F.S. § 914.04, F.S.A. provides for Transactional immunity, and that therefore they may not be prosecuted for 'any transaction, matter, or thing concerning which' they testified pursuant to the subpoenas. In this, they are correct. However, the statute additionally provides a Use immunity, specifying that 'no testimony to given or produced shall be received against him upon any criminal investigation or proceeding'. At first glance, the use immunity provision would seem to be superfluous in view of the provisions for transactional immunity. The reason for the provision becomes evident, however, if one considers the situation of a person testifying as to one criminal transaction who, in the course of his testimony, discloses a fact, innocent in and of itself, which links him to an independent and separate criminal transaction; in such a situation, the transactional immunity would apply as to the first transaction, but not to the second criminal transaction.
Thus, if a person testifies under subpoena...
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Tsavaris v. Scruggs
...grounds, confers transactional immunity as to the matter about which he inquires and use immunity as to other offenses. State ex rel. Hough v. Popper, Fla., 287 So.2d 282, reh. den. 287 So.2d 321 (Fla.1974). Whether, in such circumstances, this broader grant of immunity is required by Art. ......
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Novo v. Scott
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