State v. Barnett

• Decision Date: 18 February 1977
• Docket Number: No. 76--1136,76--1136
• Citation: 344 So.2d 863
• Parties: STATE of Florida, Appellant, v. William BARNETT, Appellee.
• Court: Florida District Court of Appeals

Page 863

344 So.2d 863

STATE of Florida, Appellant, v. William BARNETT, Appellee.

No. 76--1136.

District Court of Appeal of Florida, Second District.

Feb. 18, 1977.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.

Robert R. Hagaman of Schryver, Hagaman & Aaron, Chartered, Naples, for appellee.

GRIMES, Judge.

This is an appeal from an order dismissing an indictment which was returned by the statewide grand jury and filed in Lee County.

The indictment reads as follows:

'THE GRAND JURORS OF THE STATE OF FLORIDA, pursuant to the authority vested in them by Florida Statutes 905.34, inquiring in and for the body of the County of Lee, State of Florida, other counties in the State of Florida, and elsewhere, having been duly empaneled by Order of the Supreme Court of Florida on December 18, 1974, upon their oaths present that RONNIE P. LONG of Hendry County; EDWARD SALEM of Dade County; ROBERT TOLAR of Hendry County; WILLIAM BARNETT of Collier County; JOHN SHEPPARD of Collier County; CORNELIUS McGILLICUDDY, JR, a/k/a CONNIE MACK, JR. of Lee County; GLENN DeVORE of Lee County; between the 1st day of October, 1975, and the 18th day of January, 1976, in the County of Lee, State of Florida, and in the County of Collier or Dade or Hendry, State of Florida, did unlawfully and feloniously engage in a common bookmaking scheme with three (3) or more persons, contrary to Section 849.25(3), Florida Statutes, in such case made and provided and against the peace and dignity of the State of Florida.'

The indictment is subject to several criticisms. In the first place, it is woefully short of facts. Section 849.25, Florida Statutes (1975) reads in part:

'849.25 'Bookmaking' defined; penalties.--

(1) As used in this section, the term 'bookmaking' shall be deemed to be the taking or receiving of any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man, beast, fowl or motor vehicle.

(3) Whoever engages in bookmaking to the extent that in any one day he receives or accepts more than five bets or receives bets totaling more than $500, or engages in a common bookmaking scheme with three or more persons, is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. . . .

* * *'

Thus, it is apparent that the seven defendants have been charged simply by tracking the language of the statute without the allegation of any facts or circumstances concerning how the crime was allegedly committed. Yet, Fla.R.Crim.P. 3.140(d)(1) on the subject of indictments and informations specifies that each count 'upon which the defendant is to be tried shall allege the essential facts constituting the offense charged.' In determining that an information failed to advise the accused as to what charge he was required to defend against, our Supreme Court in Rosin v. Anderson, 155 Fla. 673, 21 So.2d 143, 144 (1945), included the following quotation:

"The principal rule, as to the certainty required in an indictment may, I think, be correctly laid down thus: that where the definition of an offense whether by a rule of the common law or by statute, includes generic terms (as it necessarily must) it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species--it must descend to particulars."

More recently, in State v. Whisnant, 80 So.2d 611 (Fla.1955), the Supreme Court held invalid an information which charged a conspiracy to transmit racing information for illegal gambling purposes in essentially statutory language. The court said:

'In the case at bar failure of allegations did not concern technical or matters of common knowledge. The trial judge considered them such as made it impossible for defendants to prepare their defense. The place of the crime attempted to be alleged, that is to say the conspiracy, what the conspiracy consisted in, what race track was in the mind of the conspirators, what race or races were involved, what day or days were said races to be run. Certainly enough of these facts should have been set out in the information to charge the conspiracy. The essential allegations of fact or circumstances as contemplated by the Declaration of Rights is lacking.'

The allegations concerning the time of the offense also present problems. On this point, Fla.R.Crim.P. 3.140(d)(3) states:

'(3) Time and Place. Each count of an indictment or information upon which the defendant is to be tried shall contain allegations stating as definitely as possible the time and place of the commission of the offense charged in the act or transaction or on two or more acts or transactions connected together, provided the court in which the indictment or information is filed has jurisdiction to try all of the offenses charged.'

Informations alleging the commission of an offense 'on or about' a specific date have been upheld. Sparks v. State, 273 So.2d 74 (Fla.1973). Our courts have also recognized that some crimes by their nature may be accomplished over a substantial period of time. Thus, the Supreme Court in Collier v. State, 116 Fla. 703, 156 So. 703 (1934), upheld an indictment for the conduct of a lottery alleged to have occurred on July 29, 1933, and 'at...