State v. Segura

• Decision Date: 05 December 1979
• Docket Number: 79-828,Nos. 79-827,s. 79-827
• Citation: State v. Segura, 378 So.2d 1240 (Fla. App. 1979)
• Court: Florida District Court of Appeals
• Parties: STATE of Florida, Appellant, v. Victor SEGURA et al., Appellees.

Page 1240

378 So.2d 1240

STATE of Florida, Appellant, v.Victor SEGURA et al., Appellees.

Nos. 79-827, 79-828.

District Court of Appeal of Florida, Second District.

Dec. 5, 1979.

Rehearing Denied Jan. 17, 1980.

Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.

Mark King Leban and Stephen J. Bronis, Miami, for appellees.

SCHEB, Judge.

The state appeals an order dismissing for vagueness a conspiracy count in an amended information filed against appellees/defendants and an order granting their motion in limine.We reverse.

The amended information alleged that the several appellees:

(d)id agree, combine, conspire or confederate with one another to commit the felony offense of possession with intent to sell or deliver over 100 pounds of a controlled substance, to wit: cannabis, commonly known as marijuana, in that Victor Segura, Joige Gonzalez and Juan Rojas were the occupants of one boat and Jorge Hernandez and Juan Aguiar Otano were the occupants of a second boat, both boats being located in Pasco County's coastal waters during the early morning hours of June 2, 1978, and both boats being heavily laden with cannabis, commonly known as marijuana, at the time they were so located; and further, the said boats were observed acting in concert on June 1, 1978, both boats entering then exiting Staley's Hudson Marina in Pasco County, Florida, and taking on fuel for both of said boats at said marina, and during said operation one of the said boats was under the control of Roland Rojas; and further, Roland Rojas did purchase two navigational charts for the Pasco County, Florida, area on June 1, 1978 in furtherance of said agreement, combination, conspiracy or confederation, which charts were found in the early morning hours of 2 June 1978 aboard the boat occupied by Victor Segura, Joige Gonzalez and Juan Rojas when said boat was heavily laden with marijuana and which charts contained the fingerprints of Roland Rojas, Juan Otano, Juan Rojas and Joige Gonzalez . . . .

The state contends that the trial court misapplied State v. Smith, 240 So.2d 807(Fla.1970), andState v. Burkett, 344 So.2d 868(Fla.2d DCA1977), in dismissing this information for vagueness pursuant to Florida Rule of Criminal Procedure 3.140(O ).In order to withstand a motion to dismiss for vagueness:

(a)n indictment or information for conspiracy must contain a statement of the facts relied on as constituting the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in such a manner as to enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a separate indictment or information based on the same facts.

240 So.2d at 809.

Appellees argue that the information fails to meet the Smith test because it does not state the facts with sufficient certainty and precision so that an individual defendant could successfully defend a separate charge based on the same facts.Specifically, appellees contend that it is impossible to determine whether Segura (an occupant of the first boat) is charged with conspiring to possess the cannabis found aboard the vessel occupied by Otano and Hernandez, or whether Hernandez is charged with conspiring to possess cannabis found aboard the fist boat, and...