State v. Smith

• Decision Date: 28 October 1970
• Docket Number: No. 39701,39701
• Citation: 240 So.2d 807
• Parties: STATE of Florida, Petitioner, v. Charles Kenneth SMITH, Respondent.
• Court: Florida Supreme Court

Page 807

240 So.2d 807

STATE of Florida, Petitioner, v. Charles Kenneth SMITH, Respondent.

No. 39701.

Supreme Court of Florida.

Oct. 28, 1970.

Earl Faircloth, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for petitioner.

Edward M. Kay, Davie, of Varon and Stahl, Hollywood, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Smith v. State, 233 So.2d 870) which allegedly conflicts with a prior decision of this Court (Goswick v. State, 143 So.2d 817) on the same point of law. Fla.Const. art. V, § 4, F.S.A.

An information was filed in the Court of Record of Broward County, Florida, charging that the defendant, Clarles Kenneth Smith, Et al., on a certain date,

'(D)id then and there unlawfully combine, conspire, agree or confederate with each other and with JAMES PURKHISER, JOHN PHILEMON LUKE II, JOHN FRANCIS HENRY and HUBERT RAY STIDHAM to commit a felony punishable by death or imprisonment for life, to-wit: First Degree Murder, in that they combined, conspired, agreed or confederated on the 5th day of December, 1965 to then and there, unlawfully and feloniously and from a premeditated design, effect the death of MIGUEL ANGEL RIVERA, a human being.'

In its instructions, the trial court charged the jury that it could return a verdict of conspiracy to commit assault and battery, if the evidence so warranted. Defendant made no objection to this charge at the trial. The Jury returned a verdict finding Defendant guilty of conspiracy to commit assault and battery. Defendant first complained of the charge in his additional ground for motion for new trial in which he alleged that conspiracy to commit assault and battery was not a lesser included offense under the information so that the conviction was null and void. Defendant does not challenge the sufficiency of the evidence to show a conspiracy to commit assault and battery.

The judgment was affirmed on appeal by the Circuit Court but the District Court of Appeal granted certiorari and quashed the affirmance. The District Court relied upon the holding in Brown v. State, 206 So.2d 377 (Fla.1968) to the effect that a lesser offense of which Defendant may be convicted is one which must be included in the accusatory pleading and the evidence. The District Court then held that Defendant was convicted of an offense for which he was not charged. This being fundamental error, the judgment of affirmance was quashed and the cause remanded to the Circuit Court with directions to enter an order reversing the judgment of conviction and to remand the cause to the trial court for discharge of the Defendant.

In Goswick v. State, Supra, this Court held that the crime of assault and battery is not necessarily a lesser included offense in the crime of aggravated assault, but it is possible for the evidence in a particular case to reveal that an accused might properly be convicted of the lesser offense of assault and battery under a charge of aggravated assault, if there is a battery and the jury should conclude that the weapon used was not deadly. It was held that under the evidence an instruction on assault and battery should have been given. In other words, the Goswick case apparently held that a lesser offense is one which may or may not be included in the offense charged depending on the Evidence, while the Brown case held that a lesser included offense is one which may or may not be included in the offense charged depending on the Accusatory pleading and the evidence. This is sufficient conflict to warrant the exercise of our jurisdiction.

In order to avoid any further confusion, we reaffirm the opinion and decision in Brown v. State, Supra, and recede from any portion of the opinion in Goswick v. State, Supra, which may be in conflict therewith.

In determining the case Sub judice, we must first consider the limitations upon the scope of review by the District Court of Appeal.

In all cases originating in a Criminal Court of Record, and affirmed in the Circuit Court, certiorari will not lie to the District Court of Appeal in the absence of a showing that the Criminal Court of Record, or Circuit Court, exceeded its jurisdiction or proceeded in derogation of the essential requirements of law. See 3 F.L.P. Certiorari Common Law, § 16. The only question to be determined is whether the Circuit Court proceeded in derogation of the essential requirements of law in affirming the conviction, or, in other words, whether it was fundamental error for a Defendant to be convicted, without objection, of the lesser offense of conspiracy to commit assault and battery when he had been charged in the accusatory pleading with the crime of conspiracy to commit murder in the first degree.

The gist of the offense is the conspiracy. An 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. 15A C.J.S. Conspiracy § 80. The indictment or information should state the object or purpose of the conspiracy, but it is unnecessary to set forth the elements of the contemplated offense with the particularity and technical precision required in drawing an indictment or information charging the commission of such offense. 15A C.J.S. Conspiracy § 85. See also 4 F.L.P. Conspiracy § 18.

The absence of an objection to the jury instruction on conspiracy to commit assault and battery brings into play the provisions of Fla.Stat. § 918.10(4) F.S.A., which reads as follows:

'No party may assign as...