State v. Black, 54644

• Citation: 385 So.2d 1372
• Decision Date: 10 July 1980
• Docket Number: No. 54644,54644
• Parties: STATE of Florida, Petitioner, v. Theron BLACK, Respondent.
• Court: United States State Supreme Court of Florida

Page 1372

385 So.2d 1372

STATE of Florida, Petitioner, v. Theron BLACK, Respondent.

No. 54644.

Supreme Court of Florida.

July 10, 1980.

Jim Smith, Atty. Gen., and C. Marie King, Asst. Atty. Gen., Tampa, for petitioner.

Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for respondent.

ADKINS, Justice.

This cause is before us on petition for writ of certiorari supported by certificate of the Second District Court of Appeal that its decision reported in Black v. State, 360 So.2d 142 (Fla.2d DCA 1978) involves a question of great public interest. Art. V, § 3(b)(3), Fla.Const.

The question was certified as follows:

Is a grand jury indictment insufficient to sustain a conviction when it fails to specify the place where the crime allegedly occurred, even though this allegation is subsequently supplied by a bill of particulars, the defendant is not hindered in the preparation or presentation of his defense, and the situs of the crime is proven at trial?

360 So.2d at 142-43. The district court followed the precedent of this Court established in Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931) answering in the affirmative; but urged us to reevaluate the principle enunciated in Rimes in light of changing circumstances in the law of criminal procedure. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Petitioner, defendant below, was indicted for first degree murder. The caption of the indictment named the circuit court for Hernando County, but the body of the indictment did not contain a statement as to the place of the alleged crime. The state subsequently filed a statement of particulars giving an exact address in Hernando County. The state demand for notice of alibi repeated the address specified in the bill of particulars. Finally, the evidence adduced at trial established venue in Hernando County. The trial court denied defendant's motion to dismiss the indictment as vague and indefinite both pretrial and at the close of the state's case. The Second District Court of Appeal found the indictment fatally defective and reversed the conviction.

There are two constitutional requirements of an indictment which are pertinent to the resolution of this case. First, an indictment must apprise a person of the charges in a manner which enables the accused to prepare a defense; second, the allegations must be specific enough to protect the accused from twice being placed in jeopardy for the same offense. U. S. v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); State v. Smith, 240 So.2d 807 (Fla.1970). The common law insured these constitutional guarantees in part by requiring great precision and certainty in allegations as to place within the body of the accusatory writ. Ledbetter v. U. S., 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898); Groner v. State, 6 Fla. 39 (1855). Adherence to the technicalities of common law pleading has yielded in modern practice to the general principle that formal, non-prejudicial defects will be disregarded. This philosophy underlies our Rule 3.140(oo), Florida Rules of Criminal Procedure:

Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

See also Rule 3.020 Fla.R.Crim.P.

The state argues that the district court correctly observed that the defendant was not prejudiced in the preparation of his defense because the bill of particulars and demand for notice of alibi stated an exact time, date and place. Also, that there is no threat of double jeopardy since the trial transcript would be available upon any such plea and the evidence adduced clearly established both venue and the murder victim's identity. 360 So.2d at 144. In addition, the state relies on two decisions which allegedly represent a relaxation of the criteria for sufficient indictments. Neither of these dealt with an indictment wholly lacking in an essential allegation; but with allegations which were inexact or nonspecific. State v. Barnett, 344 So.2d 863 (Fla.2d DCA 1977) (place of offense should not be alleged in the disjunctive), disapproved on other grounds, McNamara v. State, 357 So.2d 410 (Fla.1978); Sparks v. State, 273 So.2d 74 (Fla.1973) (use of "on or about" language with reference to time of offense held sufficient).

It is true that the availability of a statement of particulars and Florida's liberal discovery rules allow an accused more leeway to prepare a defense than did the common law 'four corners of the indictment' rule; but it is equally certain that a statement of particulars cannot cure fundamental defects in an indictment. 360 So.2d at 144. Venue is an essential element in any criminal charge. Art. I, § 16, Fla.Const. As such, venue has long been held a necessary part of an indictment which must be sustained by affirmative proof at trial. Rimes v. State, supra; McKinnie v. State, 44 Fla. 143, 32 So. 786 (1902); Robinson v. State, 20 Fla. 804 (1884); Cook v. State, 20 Fla. 802 (1884); Evans v. State, 17 Fla. 192 (1879). This well established principle is reflected in rule 3.140(d)(3), Florida Rules of Criminal Procedure:

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.

Allegations as to the place of the alleged offense also fix the jurisdiction of the grand jury and court. See 41 Am.Jur.2d Indictments & Informations §§ 122, 124 (1968); Annot. 59 A.L.R. 2d 906 § 4 (1956). Proper jurisdictional allegations are as essential in an accusatory writ as are those relating to the material elements of the crime. Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972); Conner v. State, 29 Fla. 455, 10 So. 891 (1892).

In view of the secrecy which surrounds grand jury proceedings, indictments, especially, should facially indicate jurisdiction. State v. Ostergard, 343 So.2d 874 (Fla.2d DCA 1977), writ discharged 360 So.2d 414, 414 (Fla.1978) (Adkins, J., concurring specially).

The indictment in the case at bar did not even allege that the "grand jurors of . . . Florida . . . in . . . Hernando County" presented that the defendant "in the county and state aforesaid" committed an offense. McElvene v. State, 105 Fla. 639, 142 So. 216 (1932). This is not an appropriate instance to encourage liberal amendment of imprecise allegations as long as the defendant is not prejudiced. Lackos v. State, 339 So.2d 217 (Fla.1976). The indictment completely failed to allege venue; in this it was fundamentally defective and void. We affirm the holding in Rimes v. State that the "defect is one of substance and not of form." 133 So.2d at 551. The question certified to us is hereby answered in the affirmative, and the decision of the district court of appeal is approved.

It is so ordered.

SUNDBERG, C. J., and BOYD and OVERTON, JJ., concur.

ENGLAND, J., concurs specially with an opinion, with which OVERTON, J., concurs.

ENGLAND, Justice, specially concurring.

The Court's decision today is correctly decided under existing law, but this case suggests to me the need to reevaluate Florida's rules governing the sufficiency of indictments.

The reasons for requiring a precise allegation of venue in a charging document are, as the Court notes, to enable the accused to prepare a defense, to preclude double jeopardy for the same offense, and to fix the jurisdiction of the grand jury and the court. Both the district court ¹ and this Court have concluded that the defendant Black was not prejudiced in the least by the venue deficiency in this case, as the place of the crime was early supplied by a bill of particulars and then later proven at trial. There is in the majority's analysis no justification for a continuation of the rule in circumstances such as these, other than that it has always been the rule. That justification, I submit, is simply not good enough if alternatives are available, and there are. Either this Court or the legislature could modify or abrogate the strict common law rule requiring that venue be alleged in an indictment, under one of two possible approaches.

One technique would be the adoption of a more relaxed standard governing allegations of venue in an indictment. Our present rules, embodying the spirit of the common law, require that the place of the offense be alleged as definitely as possible in each count of an indictment. ² In contrast, some states by statute dispense with the necessity of alleging venue, so long as it is proven at trial that the offense was committed in the county in which the indictment was preferred. ³ Other states reach the goal by statutes which deem sufficient merely placing the name of the county and court in the caption or margin of the indictment. ⁴ The indictment in the present case would have been sufficient under either of these less formal standards.

A second technique is to allow the prosecutor or trial judge to amend an indictment in certain instances to include allegations of venue. The traditional rule in Florida, of course, precludes such amendments, as only a grand jury can amend an indictment with regard to matters of substance such as venue. Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927); Perez v. State, 371 So.2d 714 (Fla.2d DCA 1979); Russell v. State, 349...