State v. Anderson
| Decision Date | 11 October 1972 |
| Docket Number | No. 41853,41853 |
| Citation | 270 So.2d 353 |
| Parties | STATE of Florida, Petitioner, v. Randall ANDERSON, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for petitioner.
Henry Gonzalez, Tampa, for respondent.
By petition for certiorari, we have for review a decision of the District Court of Appeal, Second District (Anderson v. State, 255 So.2d 550) (Fla.App.), which allegedly conflicts with prior decisions of this Court (Brown v. State, 206 So.2d 377, (Fla.); State v. Smith, 240 So.2d 807 (Fla.)), as well as with prior decisions of the District Court of Appeal, First District (Alderman v. State, 167 So.2d 635 (Fla.App.); McPhee v. State, 254 So.2d 406 (Fla.App.)) on the same point of law. Fla.Const., art. V, § 4, F.S.A.
An information charged respondent (hereinafter referred to as 'defendant'), as follows:
'(D)id unlawfully aid or assist in the setting up, promoting or conducting of a lottery or a lottery drawing for money commonly known as Bolita Cuba and/or bond, . . . in violation of section 849.09(1)(d).'
At the trial, witness Steele testified that he purchased three numbers from defendant and that, after accepting Steele's money, defendant went to a telephone and dialed a number. Another purchase of lottery from defendant was shown by the evidence. A detective testified as to the general operation of a lottery and explained the use of the telephone by defendant after the bet was made by Steele.
At the close of the evidence, defendant requested a charge to the effect that selling or offering for sale or transmitting a share representing an interest in a lottery was a lesser included offense to the charged offense. Aiding and assisting in the setting up, promoting, or conducting a lottery (Fla.Stat. § 849.09(1)(d), F.S.A.), is a felony by virtue of Fla.Stat. § 849.09(2), F.S.A., while the offense of selling under the statute is a misdemeanor (Fla.Stat. § 849.09(3), F.S.A.). After trial by jury and verdict of guilty, defendant was adjudicated guilty and then appealed. The District Court of Appeal reversed the conviction on the ground that the trial court erred in refusing to instruct the jury on the offense of selling as a lesser included offense of the charge of setting up or promoting a lottery.
In Brown v. State, Supra, we classified the various situations concerning instructions on lesser offenses into four categories:
(1) Crimes divisible into degrees;
(2) Attempts to commit offenses;
(3) Offenses necessarily included in the offense charged; and
(4) Offenses which May or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
We are only concerned with category (4), since selling a lottery ticket or a share thereof is not a Necessarily included offense to that of aiding and assisting in the conducting of a lottery. It is not Necessary to prove the elements of selling a lottery ticket or a share thereof in order to prove aiding and assisting in the conducting or promoting of a lottery. One may aid and assist by selling, possessing, transporting, hiring, procuring, supplying telephones, supplying premises, or by many other such means. See Fla.Stat. §§ 849.09 and 776.011, F.S.A. The District Court of Appeal was concerned only with category (4), that is, those offenses which May or may not be included in the offense charged, depending upon the accusatory pleading and the evidence.
The District Court of Appeal in the case Sub judice held that, even though the accusatory pleading does not spell out the lesser offense, the defendant is entitled to an instruction of the lesser offense where:
(a) there is sufficient evidence thereof, and
(b) the lesser offense is 'comprehended' within the major offense to the extent that it is within the general scope of the charge made, and
(c) the defendant requests the charge.
Brown v. State, Supra, requires that the accusatory pleading allege all the essential elements of the lesser offense or at least spell it out in its pleading.
This is apparent when the Court, in discussing category (4) said:
The decision of the District Court of Appeal in the case Sub judice would require the instruction, however, where the lesser offense is Within the general scope of the charge made. This decision is not compatible with Appell v. State, 250 So.2d 318 (Fla.App.4th, 1971) and Anderson v. State, 235 So.2d 738 (Fla.App.1st, 1970), where it was recognized that aggravated assault is within the general scope of the charge of murder, yet is not considered an included offense unless the accusatory pleading spells out that the offense was committed with a deadly weapon. Also, aggravated assault is within the general scope of mayhem, but the defendant is not entitled to an instruction on aggravated assault unless the mayhem charge alleges it was committed within a weapon. Blitch v. State, 194 So.2d 1 (Fla.App.3d, 1967). Fornication is within the general scope of rape but a requested instruction on fornication in a prosecution for rape was properly denied. Delaine v. State, 262 So.2d 655 (Fla.1972).
In Goswick v. State, 143 So.2d 817 (Fla.1962), we held that a lesser offense would be considered to be included in the greater offense if supported by the evidence adduced at the trial, regardless of the allegation of the accusatory pleading. In State v. Smith, 240 So.2d 807 (Fla.1970), we receded from Goswick v. State, Supra. The District Court of Appeal in the case Sub judice noted that Goswick was cited with approval by this Court in Delai ne v. State, Supra. However, we have withdrawn the opinion in Delaine v. State, Supra, upon which the District Court of Appeal relied and substituted another which is in conformity with the principles of Brown v. State, Supra, and State v. Smith, Supra.
The accusatory pleading must apprise the defendant of all offenses of which he may be convicted. This simply means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit the offense, and any lesser offense which is an essential ingredient of the major crime charged.
In addition, it...
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