Tucker v. State

• Citation: 459 So.2d 306
• Decision Date: 25 October 1984
• Docket Number: No. 62683,62683
• Parties: Melvee TUCKER, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 306

459 So.2d 306

Melvee TUCKER, Petitioner, v. The STATE of Florida, Respondent.

No. 62683.

Supreme Court of Florida.

Oct. 25, 1984.

Rehearing Denied Dec. 19, 1984.

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.

Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.

EHRLICH, Justice.

This cause, reported at 417 So.2d 1006 (Fla. 3d DCA 1982), is before the Court on a question certified as being of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

On December 15, 1977, Tucker was charged with first-degree murder in the death of Harold Rosenbaum, which had occurred on June 11, 1974, more than three years earlier. At the close of the state's case, Tucker moved to dismiss the indictment on the grounds that it failed to allege venue. The motion was denied. Tucker also requested jury instructions on lesser-included offenses. The trial court denied the request because the statute of limitations had run on all lesser-included offenses.

Tucker was convicted and sentenced to life imprisonment with a minimum mandatory term of twenty-five years. The Third District Court of Appeal affirmed the conviction and sentence, but it certified as a question of great public importance the following:

Is the error in the failure of an indictment to specify the place where the crime allegedly occurred so fundamental that it may be urged on appeal, though not properly presented at the trial court, where the defendant is not hindered in the preparation or presentation of his defense and the situs of the crime is proved at trial?

417 So.2d at 1013, 1020 n. 1. We answer the question in the negative and approve the result reached by the district court.

The district court properly acknowledged this Court's ruling in State v. Black, 385 So.2d 1372 (Fla.1980), holding that venue was an essential element of the crime charged, thus an indictment which failed to allege venue was so fundamentally defective as to be incapable of supporting a conviction. Nonetheless, the district court distinguished this case from Black on the grounds that in Black the insufficiency of the indictment was timely raised by a pretrial motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). In Tucker, the issue was first raised when the state rested its case. Subsequent to this ruling of the district court, the Supreme Court of Florida issued State v. Gray, 435 So.2d 816 (Fla.1983), reiterating the axiomatic proposition that fundamental error may be raised at any time, "before trial, after trial, on appeal, or by habeas corpus." Id. at 818. Rather than attempt to draw any distinctions among degrees of fundamental error, we revisit Black to determine whether it is in the best interests of justice to continue to define the allegation of venue to be a "fundamental defect which renders the indictment void."

Black relies primarily on a decision of this Court, Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931). In Rimes, the defendant had been charged with desertion of and failure to support his wife and child. The indictment had failed to specify in what county the alleged crimes had occurred. The Court, in holding the defect to be "one of substance and not of form," 101 Fla. at 1324, 133 So. at 551, focused on the facts of the case and the policy underlying the requirement of an allegation of venue. "The indictment as framed would not protect the defendant against another prosecution for the same offense, as no county is named as the place of commission of the alleged offense." Id.

That the ruling of Rimes was dependent upon the facts of the case is apparent from the fact that seven years later a panel of the Court consisting largely of the same justices who had concurred in Rimes addressed the same issue on facts directly on point with those in Tucker. In Brown v. State, 135 Fla. 30, 184 So. 518 (1938), the Court was asked to reverse a trial court's refusal to quash an indictment for first-degree murder which failed to allege the venue of the crime. There the Court held:

The test of the sufficiency of an indictment under the law of Florida is whether or not it is so vague, inconsistent and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

135 Fla. at 34, 184 So. at 519-20. On the facts of that case, the Court found no error in the trial court's denial of the motion to dismiss.

The same language used by the Court in Brown, statutory in origin, see, e.g., section 8369, Compiled General Laws of Florida (1927), was incorporated into Florida Rule of Criminal Procedure 3.140(o):

No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

(Emphasis supplied.)

No argument has been raised that Tucker was in any way embarrassed in the preparation of his defense, nor is there any threat of double jeopardy. Those facts alleged in the indictment indicate a specific date and a specific victim; other details were provided in a bill of particulars. Finally, the evidence adduced at trial was more than adequate to sustain a Blockburger defense to any possible future prosecution. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Nor is the allegation of venue properly considered to be a jurisdictional requisite, as we held in Black. The issue is, as the Third District noted, solely one of venue, not affecting the power of the court to hear that case but rather addressing the propriety of that particular trial court to hear that particular case. This Court, in the same year it decided Black, discussed the difference between the two concepts in Lane v. State, 388 So.2d 1022, 1026 (Fla.1980).

Venue should not be confused with jurisdiction although some of the original common law cases appear to concern venue.... Jurisdiction is the very power of the state to exert the influence of its courts over a criminal defendant, and it cannot be waived. Venue on the other hand is merely a privilege which may be waived or changed under certain circumstances.

This is not to gainsay the constitutional guarantee of defendant's venue privilege contained in article I, section 16 of the Florida Constitution. We would not fail to preserve Tucker's constitutional right "to be informed of the nature and cause of the accusation against him" and to be tried "in the county where the crime was committed." But Tucker has never claimed that venue was laid in the wrong county, nor has he claimed any misunderstanding of the nature and cause of the accusation against him. Had Tucker been able to show that the crime of which he was convicted was not committed in Dade County, or that the prosecution had not presented sufficient proof that the crime occurred in the county where the trial was held, the conviction clearly could not stand. Woodward v. Petteway, 123 Fla. 892, 168 So. 806 (1935); McKinnie v. State, 44 Fla. 143, 32 So. 786 (1902). Nonetheless, the Florida constitution does not mandate an allegation of venue in an indictment.

Any requirement that venue be alleged in an indictment is a procedural rule stemming from common-law applications of due process considerations. In Florida, this requirement arose as a judicial interpretation of a statute which merely required adequate notice. See, e.g., § 8363, Compiled General Laws of Florida (1927). As in Rimes, under earlier pleading standards, lack of a venue allegation raised the danger of inadequate protection from double jeopardy. This common law requirement is made a part of the modern procedural rules in Florida Rule of Criminal Procedure 3.140(d)(3), but it is also to be read in pari materia with subsection (o) of that same rule, quoted above.

Nor does any policy argument support absolute adherence to that archaic rule of pleading. Modern discovery procedures have vitiated the danger of prejudice in the preparation of a defense and have led to a relaxation of strict pleading requirements. See, e.g., York v. State, 432 So.2d 51 (Fla.1983); Sparks v. State, 273 So.2d 74 (Fla.1973) . Double jeopardy safeguards are a part of both procedural rules, see, e.g., Florida Rule of Criminal Procedure 3.190(c)(2), and substantive law. Amend. V, U.S. Const.; art. I, § 9, Fla. Const.; Blockburger v. United States.

We therefore hold that failure to allege venue in an indictment or information is an error of form, not of substance and such a defect will not render the charging instrument void absent a showing of prejudice to the defendant. In so doing, we recede from Black.

Petitioner also raises the question of whether trial counsel's request for instructions on lesser-included offenses was an effective waiver of the statute of limitations defense against conviction for such time-barred offenses, so that the trial court erred in refusing to give the requested instructions. To address the issue, we must first determine whether a defendant may waive the statute of limitations defense. For the reasons so clearly and persuasively set forth by the Third District, we hold that the defense is a waivable one.

We also agree with the district court that the mere request for instructions on time-barred lesser-included offenses is not an effective waiver. Petitioner argues that under Ray v. State, 403 So.2d...