Tucker v. State

• Decision Date: 22 June 1982
• Docket Number: No. 78-2075,78-2075
• Citation: 417 So.2d 1006
• Parties: Melvee TUCKER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1006

417 So.2d 1006

Melvee TUCKER, Appellant, v. The STATE of Florida, Appellee.

No. 78-2075.

District Court of Appeal of Florida,

Third District.

June 22, 1982.

Rehearing Denied Aug. 25, 1982.

Bennett H. Brummer, Public Defender, and Michael Zelman, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

On December 14, 1977, appellant Melvee Tucker was indicted by grand jury for the first-degree murder of a convenience store employee killed more than three years earlier on June 11, 1974 during a robbery attempt. After a jury trial, Tucker was adjudicated guilty of first-degree murder and sentenced to life imprisonment. He appeals, raising six points as error: (1) failure to dismiss the indictment because it contained no allegation of venue, (2) failure to dismiss the indictment because delay in prosecution violated appellant's rights to due process, (3) failure to dismiss the indictment because of underrepresentation on the grand jury of Blacks, Latins, and females, (4) failure to suppress his confession as the product of an illegal arrest or as not voluntarily given, (5) failure to grant a mistrial for prejudicial presecutorial comment, and (6) refusal to instruct on a lesser-included offense to which the statute of limitations had run. We affirm.

I

As to the first point on appeal we hold that Tucker may not now challenge his conviction and sentence on the grounds that indictment fails to allege venue because he failed to raise the issue by pre-trial motion. See, e.g., Fuller v. State, 159 Fla. 200, 31 So.2d 259 (Fla.1947); Fla.R.Crim.P. 3.190(c). The defect of failure to allege venue is one of substance rendering the indictment fundamentally defective, State v. Black, 385 So.2d 1372 (Fla.1980), however, a substantive defect in an indictment or information may be waived unless challenged timely by motion to dismiss. Fla.R.Crim.P. 3.190(b) and (c). In State v. Black, supra, and Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931), upon which Black relies, the defective indictment was attacked by pretrial motion. We interpret the statement of the supreme court that "Allegations as to the place of the alleged offense also fixes the jurisdiction of the grand jury and court," State v. Black, supra, at 1375, as referring to "venue," consistent with Rimes v. State, supra. See also Annot. 59 A.L.R.2d 906, § 4 (1956) cited by the court in State v. Black, supra, (requirement for statement of place where offense committed is to establish venue and avoid prejudice to defendant in preparation of case). Venue is not the same as jurisdiction though the terms are sometimes used interchangeably. Jurisdiction means the inherent power to decide a case. Venue designates the geographical subdivision in which a court of competent jurisdiction may determine the case. 15 Fla.Jur.2d, Criminal Law § 566. Venue, unlike subject matter jurisdiction, may be waived.

The court in State v. Black, supra, also stated, at p. 1375, "Venue is an essential element in any criminal charge," citing Art. I, § 16, Fla.Const. Florida law is clear that in cases involving informations, failure to allege an essential element of an offense does not alone render the charge void as wholly failing to state a crime, the exception under Florida Rules of Criminal Procedure 3.190(c)(4) does not apply, and failure to timely object to this defect, constitutes waiver. Tracey v. State, 130 So.2d 605 (Fla.1961); Sinclair v. State, 46 So.2d 453 (Fla.1950); Kane v. State, 392 So.2d 1012, (Fla. 5th DCA 1981); Selley v. State, 403 So.2d 427 (Fla. 5th DCA 1980); Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980). See also Ray v. State, 403 So.2d 956, 961, n.8 (Fla.1981). On the question of waiver of defect in the charging document we see no rational basis for distinguishing between an information and an indictment. But see Murphy v. State, 407 So.2d 296 (Fla. 1st DCA 1981). The indictment otherwise states a crime against Tucker, evidence of venue was produced at trial, and Tucker was not prejudiced in preparation or presentation of his defense, therefore he waived any objection to defect in the indictment by failing to file a pre-trial motion to dismiss.

We briefly dispose of the next four points on appeal, finding them to be without merit. Tucker has also failed to demonstrate that delay in indictment either prejudiced his defense or that the state delayed for the purpose of prejudicing or harassing the defendant. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We find no error on due process or equal protection grounds in denying Tucker's motion to dismiss the indictment because of underrepresentation of Blacks, Latins, and women on the grand jury or among presiding forepersons of grand juries. Bryant v. State, 386 So.2d 237 (Fla.1980). The issue of whether Tucker's confessions should have been suppressed as fruit of an illegal arrest involves a fundamental right under the Fourth Amendment to the United States Constitution, see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), which may be raised for the first time on appeal. Here, the issue was also raised and considered in the pre-trial motion to suppress. We find no error in denying the motion to suppress the confession either on the grounds that the arrest warrant was valid and the confession was not the fruit of an illegal arrest or on the grounds that the confession was given knowingly and voluntarily. See, e.g., Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975). We have reviewed the entire record and find the evidence against Tucker overwhelming. It is impossible to differ with the trial court's implicit determination that either Tucker was not prejudiced by the prosecutor's argument appealing to sympathy for the victim, see, e.g., Menendez v. State, 368 So.2d 1278 (Fla.1979), or that the argument was a permissible response to arguments of defense counsel, Francis v. State, 343 So.2d 932, 933 (Fla. 3d DCA 1977).

II

As to Tucker's remaining point on appeal that the trial court erred in refusing his request for a jury instruction on the lesser-included offenses of first-degree murder because the statute of limitations had run as to those lesser-included offenses, we find no reversible error. In Holloway v. State, 362 So.2d 333 (Fla. 3d DCA 1978), cert. denied, 379 So.2d 953 (Fla.1980), cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980), this court held that it was not error to refuse to charge lesser degrees of homicide when such offenses were barred by the statute of limitations. Tucker acknowledges this holding, but suggests the following three reasons why Holloway, supra, should not be determinative of this case: (a) subsequent authority of the Supreme Court of the United States in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) makes it appropriate to reexamine the rule in Holloway, supra, on due process considerations, (b) the equal protection clause requires instructions on lesser degrees be given to all defendants charged with first-degree murder, and (c) the court in Holloway, supra, did not resolve the question of whether an accused can waive the benefit of the statute of limitations.

In Beck v. Alabama, supra, the United States Supreme Court held that the death penalty may not be imposed if the jury is not permitted to consider a verdict of guilt of a lesser-included non-capital offense when the evidence would have supported such a verdict. The Court's rationale is based on the belief that due process requires an opportunity for a jury pardon ¹ in death cases. Nothing in this due-process jury-pardon rationale commands a reexamination of our holding in Holloway v. State supra. The Court's holding in Beck v. Alabama is specifically limited to death cases. The Court reasoned that because there is a significant constitutional difference between the death penalty and lesser punishments, the constitutional guarantee of due process requires special safeguards in capital cases. The court expressly declined to decide whether the due process clause would require the giving of such an instruction in a non-capital case. Id. 447 U.S. 638, n. 14, 100 S.Ct. 2390, n. 14, 65 L.Ed.2d 403, n. 14. Not only did the United States Supreme Court limit its holding to death cases in Beck v. Alabama, supra, ² it was not concerned with and did not address the separate issue of whether the instruction on a lesser-included offense is still required when the statute of limitations has run as to the lesser-included offense.

Florida courts have addressed both issues. Florida law requires that an instruction be given on the lesser-included offense in a murder case even in non-capital cases. ³ Brown v. State, 206 So.2d 377 (Fla.1968); Fla.R.Crim.P. 3.510. This instruction is not required, however, when the statute of limitations has run on the lesser-included offense. Keenan v. State, 379 So.2d 147 (Fla. 4th DCA 1980); Holloway v. State, supra. By dismissing the petition for conflict certiorari, Holloway v. State, 379 So.2d 953 (Fla.1980), the Florida Supreme Court implicitly rejected the argument that the Brown requirement for an instruction on lesser-included offenses in murder cases should apply where the statute of limitations has run on the lesser-included offenses. The dismissal of the petition for conflict certiorari was also clearly a rejection of the equal protection argument. See id., Justice Boyd, dissenting.

Tucker makes a good argument that a defendant should be permitted to waive the statute of limitations for purposes of an instruction on a lesser-included offense. We agree that this issue was not fully resolved by the court in Holloway v. State, supra, which merely considered the question of whether the trial...