Wilson v. State, 73-450

• Decision Date: 02 August 1974
• Docket Number: No. 73-450,73-450
• Citation: 298 So.2d 433
• Parties: Lonnie WILSON, Jr., a/k/a Lonnie Durham, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 433

298 So.2d 433

Lonnie WILSON, Jr., a/k/a Lonnie Durham, Appellant, v. STATE of Florida, Appellee.

No. 73-450.

District Court of Appeal of Florida, Fourth District.

Aug. 2, 1974.

Edward A. Gross and Mabie & Donaldson, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas M. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

This appeal involves the propriety of the trial court's denial of appellant's motion to sever in a criminal case.

Appellant and another defendant, Wright, were informed against in a five count information. The first three counts charged offenses against Wright only. The last two counts charged offenses against appellant only. The information did not charge each of the defendants with accountability for each of the offenses charged; it did not charge a conspiracy by the two defendants, nor did it allege that the several offenses charged were part of a common scheme or plan.

Prior to trial, at the commencement of the trial, and on several occasions during trial, appellant moved for a severance on the ground that joinder of the two defendants in the information in this case was improper under Rule 3.150(b), RCrP, which provides that:

'Two or more defendants may be charged in the same indictment or information upon which they are to be tried:

(1) when each defendant is charged with accountability for each offense charged;

(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or

(3) when, even if conspiracy is not charged and all defendants are not charged in each county, it is alleged that the several offenses charged were part of a common scheme or plan.'

On each occasion the court denied the motion. The jury found both defendants guilty. Appellant moved for a new trial, once again directing the court's attention to the improper joinder.

The sole point on appeal is whether a motion for severance must be granted when two or more defendants are joined in a multi-count indictment or information unless the charging document makes one of the following allegations: (a) each defendant is charged with accountability for each offense, or (b) each defendant is charged with conspiracy, or (c) the several offenses charged are part of a common scheme or plan. The answer lies in the interpretation of Rules 3.150(b) and 3.152(b), RCrP, and authorities construing similar federal rules.

Rule 3.150 RCrP, became effective February 1, 1973. Its predecessor, Rule 1.140(d)(5), authorized the joinder of two or more defendants if the charging document alleged the defendants participated in the same act or transaction or in the same series of acts or transactions constituting the offense. Rule 1.140(d)(5), was taken from Rule 8(b), Federal Rules of Criminal Procedure. Under these circumstances Florida courts will look to federal decisions for guidance in construing Rule 1.140(d)(5). Savage v. Rowell Dist. Corp., Fla.1957, 95 So.2d 415; Dorr-Oliver, Inc. v. Linder Industrial Machinery Co., Fla.App.1972, 263 So.2d 237. Federal decisions construing Rule 8(b) uniformly hold that severance is mandatory if the defendants are misjoined in the charging document. See, e.g., Haggard v. United States, 369 F.2d 968 (8th Cir. 1966); United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). To determine whether the joinder is proper or not one must look to the allegations of the charging document. If they are insufficient there is a misjoinder and severance is required upon motion. The question of the court's discretion to grant or deny severance only arises when the joinder of several defendants is proper under Rule 14, Federal Rules of Criminal Procedure (the rule after which our Rule 3.152 was patterned) Haggard v. United States, supra; United States v. Harris, 458 F.2d 670 (5th Cir. 1972).

In Florida the requirements for joining several defendants in a multi-count charging document are found in Rule 3.150(b). If the charging document does not meet the requirements set forth in Rule 3.150(b), a defendant (upon motion) is entitled to a severance without a demonstration of prejudice. The onus is not on the defendant but on the state to show its authority for joining several defendants in one indictment or information. Rule 3.152(b) comes into play and requires a showing of prejudice when the joinder was proper in the first instance because it...