State v. Schell
| Decision Date | 14 June 1968 |
| Docket Number | Nos. 67-402,67-454,s. 67-402 |
| Citation | 211 So.2d 581 |
| Parties | STATE of Florida, Appellant, v. James Leslie SCHELL, Appellee. |
| Court | Florida District Court of Appeals |
Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellant.
Riley, Davis & Schowe, St. Petersburg, for appellee.
The appellee-defendant, James Leslie Schell, was informed against in the Circuit Court for the felony of violation of gambling laws under Fla.Stat. 849.01, F.S.A., said information stating in part:
'* * * (O)n the 21st day of October in the year of our Lord, one thousand nine hundred sixty-six, in the County and State aforesaid, did then and there unlawfully and feloniously have, keep, exercise and maintain a gambling room and gambling implements and apparatus for the purpose of gaming and gambling for money, to wit:
'Football cards, football card Stubs, betting sheets, records of gambling transactions and money used for gambling purposes, at a place known as The Dew Drop Inn, 4900 Central Avenue, in the City of St. Petersburg, in the County and State aforesaid. * * *'
Schell had been convicted of a misdemeanor in the Civil and Criminal Court of Record for Pinellas County on the charge of bookmaking under Fla.Stat. 849.25(2), F.S.A. The bookmaking charge to which Schell plead guilty alleged that he had on October 14, 1966 placed a bet on a football game with one Robert France.
Schell filed a motion in the charge under Fla.Stat. 849.01, F.S.A., to suppress all evidence of any kind obtained prior to and including October 14, 1966 (the date of the bookmaking offense) on the ground that he had been convicted of the bookmaking offense on said date based upon the same evidence which the State proposed to use in the prosecution of the felony under Fla.Stat. 849.01, F.S.A.
Schell argued that the use of such evidence would put him in jeopardy for the second time for the same offense because the conviction of bookmaking is a lesser included offense of the felony of maintaining a gambling house and gambling implements under 849.01. Schell also urged other grounds in his motion to suppress which we will dispose of later in this opinion.
The trial court held that Schell would be twice placed in jeopardy for the same offense if one betting card and its corresponding entry on the recapitulation record, which were the basis of the charge of bookmaking on October 14, 1966, were allowed to be introduced at the trial of the felony offense under Fla.Stat. 849.01, F.S.A. All other requests under the motion to suppress were denied.
The State has appealed the trial court's granting appellee's motion to suppress the betting card and corresponding entry on the recapitulation sheet. Schell cross-assigned as error the court's denial of all other portions of his motion to suppress including the court's denial of suppressing all evidence in possession of the State which related to acts of Schell prior to and including October 14, 1966.
This entire appeal can be disposed of by the determination of one point of law, which is, whether or not the offense of bookmaking under Fla.Stat. 849.25(2), F.S.A. is a lesser included offense of maintaining a gambling house and gambling implements under Fla.Stat. 849.01, F.S.A.
All other points raised by Schell's cross-assignments of error have been waived under Rule 3.7(i) Fla.App.Rules, 32 F.S.A., 1962 Revision, because such assignments are not argued in his brief.
In answer to the only question involved herein, we hold that an offense of bookmaking under Fla.Stat. 849.25(2), F.S.A. is not a lesser included offense of maintaining a gambling house and gambling implements under Fla.Stat. 849.01, F.S.A.
It has been held time and again in this jurisdiction that the purpose and intent of Fla.Stat. 849.01, F.S.A. is to prohibit not gaming or gambling itself but to prohibit keeping of a house or other place for any manner of gaming or gambling. McBride v. State, 1897, 39 Fla. 442, 22 So. 711; Ponder v. State, 1919, 76 Fla. 526, 80 So. 311; Reinmiller v. State 1927, 93 Fla. 462, 111 So. 633; Kirk v. Morrison, 1933, 108 Fla. 144, 146 So. 215; Wilson v. State, 1937, 129 Fla. 827, 177 So. 216; Cooper v. City of Miami, 1948, 160 Fla. 656, 36 So.2d 195; Stanger v. State, Fla.App.1960, 117 So.2d 417.
The briefs of the respective parties have not cited any case nor have we succeeded in finding a Florida decision through our own research which directly rules on this point of law. However, we have found where this identical question has been decided in other jurisdictions. As early as 1927 the Supreme Court of Georgia in Gullatt v. State ex rel. Collins, 169 Ga. 538, 150 S.E. 825, held on page 827:
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Perlman v. State, 71-824
...other words, the statute does not reach the gambling or the gamblers. Stanger v. State, Fla.App.1960, 117 So.2d 417 and State v. Schell, Fla.App.1968, 211 So.2d 581, 582. Bingo has been recognized as gambling within the purview of Section 849.01, F.S.1969, F.S.A. Creash v. State, supra. Sec......
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Mart v. State
...a house or room designed for people to assemble and gamble therein. Perlman v. State, 269 So.2d 385 (Fla.4th DCA 1972); State v. Schell, 211 So.2d 581 (Fla.2d DCA 1968); Stanger v. State, 117 So.2d 417 (Fla.3d DCA 1960); State v. Hindle, 108 R.I. 389, 275 A.2d 915 (1971); Gullatt v. State e......
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Carr v. State
...denounced by Section 261, supra, is a separate and distinct offense from that denounced by Section 278, supra. See State v. Schell, Fla.App. (1968), 211 So.2d 581. The district attorney's complaint was a departure from the affidavit upon which the defendant was tried and, convicted in the m......
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State v. Tate, 82-807
...81 Misc. 256, 143 N.Y.S. 156 (N.Y.Cty.Ct.1913). This court has held that bookmaking is a specific act of gambling. State v. Schell, 211 So.2d 581 (Fla. 2d DCA 1968). The supreme court has defined bookmaking as "making book." King v. State, 104 So.2d 730 The underlying idea of bookmaking is ......