State v. Ostergard, s. 76--129

• Decision Date: 08 February 1977
• Docket Number: 76--336 and 76--451,Nos. 76--129,76--312,s. 76--129
• Citation: 343 So.2d 874
• Parties: The STATE of Florida, Appellant, v. Donald OSTERGARD et al., Appellees. The STATE of Florida, Appellant, v. Art YOUNG, Appellee. The STATE of Florida, Appellant, v. Anthony ROMANO and Herman Boren, Appellees. The STATE of Florida, Appellant, v. James RAND et al., Appellees.
• Court: Florida District Court of Appeals

Page 874

343 So.2d 874

The STATE of Florida, Appellant, v. Donald OSTERGARD et al., Appellees.

The STATE of Florida, Appellant, v. Art YOUNG, Appellee.

The STATE of Florida, Appellant, v. Anthony ROMANO and Herman Boren, Appellees.

The STATE of Florida, Appellant, v. James RAND et al., Appellees.

Nos. 76--129, 76--312, 76--336 and 76--451.

District Court of Appeal of Florida, Third District.

Feb. 8, 1977.

Rehearing Denied April 13, 1977.

Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellant.

Walter E. Gwinn, Miami, Robert R. Frank, North Bay Village, Max Kogen Hirschhorn & Freeman, Max Lurie, Miami, Victor Africano, Live Oak, for appellees.

Before HENDRY, C.J., and BARKDULL and NATHAN, JJ.

HENDRY, Chief Judge.

Appellant, the prosecution below, brings this consolidated appeal which challenges various lower court orders dismissing four separate indictments handed down by the Statewide Grand Jury against appellees, defendants below. The indictments all charged appellees with illegal gambling activities alleged to have been committed in Dade County, Florida and were all subsequently dismissed for lack of subject-matter jurisdiction of the Statewide Grand Jury.

On November 12, 1974, the Governor of the State of Florida petitioned the Supreme Court of Florida for an 'Order Empaneling a Second Statewide Grand Jury' pursuant to Sections 905.31 et seq., Florida Statutes (1973). The petition in part provided that:

'3. Petitioner has been informed by the Director of the Dade County Public Safety Department that investigations conducted by that Department, and other State, local, and Federal law enforcement agencies into violations of the criminal laws of Florida, have detected an organized and widespread criminal enterprise involving violations of the laws regarding gambling.

'4. Petitioner has been further informed by said Director and that said Crimes or wrongs are of a multicounty nature and are occurring or have occurred in two or more counties as part of a related transaction and that the offenses perpetrated by the members of said criminal enterprise are or may be connected with an organized criminal conspiracy or conspiracies affecting two or more counties.

'5. Upon the basis of evidence and information acquired to day by the Dade County Public Safety Department and others, petitioner has determined that said crimes or wrongs, involving violation of the laws regarding gambling and attempts or conspiracies to commit Crimes involving gambling, are of a multicounty nature, affect two or more counties, and have contacts and involve potential defendants in numerous counties and other judicial circuits of the State of Florida . . .' (Emphasis added.)

On December 15, 1974, the Supreme Court of Florida issued its 'Order Empaneling A Second Statewide Grand Jury.' The above order in pertinent part provided:

'2. That good and sufficient reason has been shown in the petition for the empanelment of a second statewide grand jury to investigate, return indictments, make presentments, and otherwise perform all functions of a grand jury only with regard to the commission of crimes involving gambling or conspiracies to commit violations of the laws involving gambling as set forth in the petition.

'WHEREFORE, it is, upon consideration thereof, hereby ORDERED AND ADJUDGED

'1. That a second statewide grand jury be empaneled to investigate, return indictments, make presentments, and otherwise perform all functions of a grand jury only with regard to the commission of crimes involving gambling or attempts or conspiracies to commit Violations of the laws involving gambling as set forth in the petition.' (Emphasis added.)

On October 17, 1975, the Second Statewide Grand Jury filed the first indictment in question. The indictment charged appellees Ostergard, Weedon, Andrews, Lewis and Jordan with violations of Section 849.09, Florida Statutes (1973), including the promoting, conducting, aiding and setting up of a lottery in Dade County, Florida.

The named appellees filed a motion to dismiss the indictment, alleging as one ground that the Grand Jury was without jurisdiction to indict them for the offenses alleged. In support of their motion to dismiss, appellees relied upon Section 905.32, Florida Statutes (1973), entitled 'Legislative intent.' This particular section construes the Statewide Grand Jury Act and provides that 'It is the intent of the legislature in enacting this act to strengthen the grand jury system and enhance the ability of the state to detect and eliminate organized criminal activity by improving the evidence-gathering process in Matters which transpire or have significance in more than one county.' (Emphasis added.)

By proceedings held on that motion, the lower court ruled that since the indictment failed to show on its face that the Second Statewide Grand Jury had subject matter jurisdiction, in that the offenses attributed to appellees allegedly occurred in Dade County only, dismissal for lack of subject matter jurisdiction was proper.

Thereafter, the State timely filed its notice of appeal.

Subsequent to the above, other indictments were handed down by the Second Statewide Grand Jury against the remaining appellees. The indictments charged appellees with various violations of Chapter 849, Florida Statutes (1973), illegal gambling activity. On the face of said indictments were the allegations that the aforementioned violations were all committed in Dade County, Florida.

Just as the initial appellees had done, the remaining appellees filed motions to dismiss their respective indictments on the ground that the indictments failed to facially allege the multi-county nature of the crimes. The aforementioned motions were all granted on the above basis and appellant timely filed its notice of appeal from each dismissal. By order of March 30, 1976, this court granted appellant's motion to consolidate the causes and this appeal follows.

Appellant raises many interesting and varied points on appeal to support its position--that the lower court erred in dismissing the various indictments.

The first point on appeal that we shall examine is the contention that an attack on an indictment based upon the subject matter jurisdiction of a grand jury should only be raised in a quo warranto proceeding and not a motion to dismiss. We disagree with appellant's contention and refer to Fla.R.Crim.P. 3.190(b) which provides:

'(b) Motion to Dismiss

'Grounds. All defenses available to a defendant by plea,...