State v. Ferguson, 77-973

Decision Date20 December 1978
Docket NumberNo. 77-973,77-973
Citation365 So.2d 788
PartiesSTATE of Florida, Appellant, v. Carl FERGUSON, Appellee.
CourtFlorida District Court of Appeals

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.

Enrique Escarray, III, St. Petersburg, for appellee.

OTT, Acting Chief Judge.

The state here appeals the dismissal of the information charging appellee Ferguson with permitting another person to engage in a game of cards on his premises, an offense prohibited by Section 849.01, Florida Statutes (1975) (keeping gambling houses, etc.). The trial court concluded that an essential element of the offense was the Habitual use of the premises for gambling, and that because such habitual use was not alleged in the information, dismissal of the information was required. We hold that Habitual use of the concerned premises for gambling is not an element of the offense under the second part of Section 849.01 Florida Statutes with which appellee was charged. We therefore reverse.

Section 849.01, Florida Statutes (1975) provides:

Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree . . . .

A careful reading of the statute discloses that it consists of two different parts each of which is a separate offense. Appellee was charged under the second part, which provides:

Whoever . . . in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree . . . .

While conviction under the first part of the statute requires proof that gambling has been habitually carried on at the place in question, Grossman v. State, 59 So.2d 59 (Fla.1952); Mart v. State, 350 So.2d 1123 (Fla. 3d DCA 1977); Gaetano v. State, 273 So.2d 84 (Fla. 4th DCA 1973), such proof does not seem to be required for a conviction under the second part. See Vanderhorst v. State, 151 Fla. 620, 10 So.2d 138 (1942)...

To continue reading

Request your trial
3 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT