State v. Davis, 39872

Decision Date20 January 1971
Docket NumberNo. 39872,39872
Citation243 So.2d 587
PartiesSTATE of Florida, Petitioner, v. Richard C. DAVIS, Respondent.
CourtFlorida Supreme Court

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton and Roger W. Foote, Asst. Attys. Gen., for petitioner.

Robert E. Jagger, Public Defender, and James L. DeMoully, Asst. Public Defender, for respondent.

WILLIS, BEN C., Circuit Judge.

We have for review by writ of certiorari a decision of the District Court of Appeal, Second District, 1 affirming two trial court orders dismissing three of four counts of one criminal information and both counts of another information, containing two counts. The decision is claimed to be in conflict with this court's decisions in Hollingsworth v. State, 73 Fla. 44, 75 So. 612; State v. Clein, Fla.1956, 93 So.2d 876; State v. Bruno, Fla.1958, 107 So.2d 9; Kelly v. State, Fla.1956, 92 So.2d 172; Whitman v. State, 97 Fla. 988, 122 So. 567; and Middleton v. State, 74 Fla. 234, 76 So. 785.

There appears to be at least some conflict in the decision sought to be reviewed and statements of general principles of law in the above cited prior decisions of this Court. Therefore, jurisdiction attaches under Section 4(2), Article V, of the Florida Constitution, F.S.A. Johnson v. State, Fla.1969, 222 So.2d 191.

In the trial court the state filed an amended information, numbered 17,351, in which the accused Davis was charged with two counts of embezzlement (larceny) by a public official, pursuant to F.S. Sec. 812.10, F.S.A., one court of grand larceny, and one count of uttering a forged instrument. A motion for a statement of particulars was in part granted by the trial judge. After having obtained the statement of particulars, the accused filed a motion to dismiss all counts of the information. A hearing on the motion was held and at its close, but before the entry of a written order, the state filed a new information, numbered 18,182, charging the accused with two counts of grand larceny. Orders were then entered dismissing the two counts of 17,351 charging violations of F.S. Section 812.10, F.S.A., the count charging uttering a forged instrument, and both counts of 18,182.

The two counts in 17,351, charging violations of F.S. Sec. 812.10, F.S.A., each alleged that the accused, a justice of the peace, 'whose duty it was to collect, receive and take into his possession moneys and other property of (a named decedent) * * * did, by virtue of said office * * * receive and take into his possession certain monies of said (decedent) * * * and of said monies * * * he did then and there unlawfully embezzle and convert to his own use the sum of (a specified sum of money: $1,122.09 in count one and $2,466.16 in count two) * * *.'

The count in 17,351 charging the uttering of a forged instrument alleged the offense as having occurred on July 5, 1967. This amended information was filed March 25, 1968. The two charges of grand larceny in 18,182, filed August 29, 1968, alleged both offenses occurred on November 21, 1967.

From the record it appears that the basis for dismissing the charges of embezzlement by a public official was that the allegations of the information and the particulars showed that the accused had no official obligation to receive the money allegedly embezzled, which is one of the elements of an offense under F.S. Section 812.10, F.S.A. The uttering count in 17,351 and the two larceny counts in 18,182 were dismissed because from the dates submitted in the informations, the statement of particulars, and certain stipulations made by the state at the hearing the trial judge concluded that the statute of limitations had run, thus barring the charges.

Both in the court of appeals and in this court the petitioner has argued that the trial judge committed error by giving consideration and weight to the statement of particulars and factual matters brought out at the hearing rather than confining himself solely to the allegations of the counts in the informations. The contention is made that on motion to dismiss the sole test is whether or not there are allegations in the information charging a crime or crimes under the laws of this state in terms sufficiently clear to apprise the accused as to what crime or crimes with which he is charged. It was stated by the court of appeals, and it is noted here, that no real effort is made by the State to question the substantive merits of the rulings of the trial court. As the court of appeals did not consider any of these questions, we will confine ourselves to the questions arising from the asserted conflict with prior decisions of this Court.

It was held in Hollingsworth v. State, supra, that an indictment purporting to charge a violation of the present Sec. 812.10 (then Sec. 3317, Gen.Stat.1906) was sufficient if if set forth that the defendant is an officer and by virtue of his office receives public moneys, rather than employing the words of the statute 'whose duty requires him to receive public money, property or effects'. It was stated that the allegations employed are 'equivalent to saying that the law of his office makes it his duty to receive such money'.

State v. Clein, supra, merely holds that it was error to quash an information charging publication of obscene matter when the alleged offending article was set forth in the information and a jury may have lawfully concluded the material was obscene within approved tests of that quality. In that case the error was found in the conclusion reached by the trial court that the information itself was legally insufficient. No bill of particulars was involved.

In substance, the petitioner contends that the allegations of an information or indictment are alone to be considered on motion to dismiss and if they are sufficiently clear to charge the defendant with a crime and to apprise him as to what crime is charged to him the motion should be denied. In this connection it is urged that a bill of particulars, now called statement of particulars, is no part of the pleadings and can neither weaken nor strengthen the indictment or information.

Such was indeed the holding in Kelly v. State, supra. Also in Middleton v. State, supra, it is stated that resort may not be made to the bill of particulars to point out a defect in the indictment. It was further said that a defect appearing in the bill of particulars is a defect in the proof and that objections to the sufficiency of an indictment may not be made by objecting to the evidence in support of it. To like effect is Martin v. Karel, as sheriff, 106 Fla. 363, 143 So. 317, and in State v. Bruno, Fla.1958, 107 So.2d 9, it is stated that if an information is substantially in the language of the statute it is sufficient.

Prior to enactment of the Criminal Procedure Act of 1939 (Ch. 19554, Laws of 1939; Sec. 901.01 to 925.03, F.S.A.), a motion to quash was confined to defects in the face of an indictment or information. Williamson v. Baker, 148 Fla. 387, 4 So.2d 471. However, under the 1939 act it was provided that 'all defenses heretofore available to a defendant by plea, other than pleas of nolo contendere and not guilty, shall be taken only by motion to quash the indictment or information, whether the same relates to form or substance * * *'. Sec. 909.02, F.S.A. The right to demand a bill of particulars and the power of the court to direct one independent of statutory authority was first recognized in Thalhein v. State, 38 Fla. 169, 20 So. 938. Its object was not to cure a defect in the formal charge but to inform the accused with greater certainty of the precise nature of an accusation properly charged. See Brass v. State, 45 Fla. 1, 34 So. 307. Whether such a bill of particulars was to be furnished rested then largely in the discretion of the trial court. See Smith v. State, 93 Fla. 238, 112 So. 70. This prior inherent power was fully recognized in the 1939 statute wherein it was specifically provided that the court, on motion, may order the prosecuting attorney to furnish a bill of particulars when the formal charge fails to inform the defendant sufficiently to enable him to prepare his defense. Sec. 906.07, F.S.A.

The function of a motion to quash was formerly to present an imperfection apparent on the face of the formal charge and not to introduce some extraneous fact which has to be established by evidence. Whitman v. State, 97 Fla. 988, 122 So. 567. Even its expanded scope under Sec. 909.02, F.S.A. was circumscribed by Sec. 906.25, F.S.A. wherein it was provided that no formal charge shall be quashed on account of any defect in the form of the charge unless such charge was so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or exposed him after conviction or acquittal to a substantial danger of a new prosecution for the same offense.

The present Florida Rules of Criminal Procedure first went into effect January 1, 1968 pursuant to an order of this Court filed March 1, 1967. The order...

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    ...is to be "granted only where the most favorable construction to the state would not establish a prima facie case of guilt." State v. Davis, 243 So.2d 587 (Fla.1971). If reasonable men could find guilt, a jury question exists and the motion should be denied. The facts are to be reviewed by t......
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