Zanger v. State, 88-1272
| Decision Date | 30 August 1989 |
| Docket Number | No. 88-1272,88-1272 |
| Parties | 14 Fla. L. Weekly 2015 William ZANGER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joy B. Shearer, on the brief, West Palm Beach, for appellee.
Appellant, William Zanger, was tried and convicted on several felony counts and sentenced to life imprisonment. The Information by which he was charged related to a single criminal episode occurring in Broward County, Florida. Extrinsic evidence discloses that the criminal episode in question is one of several predicate crimes upon which a RICO information has been filed in Dade County. This relationship to other crimes is not disclosed on the face of the Information in the present case, which was prepared by a Designated Assistant Statewide Prosecutor. The issue is whether the Information is thereby rendered fatally defective. We hold that it is defective.
The statewide prosecutor is a creature of Florida Statutes and the Florida Constitution. Article IV, section 4(c), states in part:
There is created in the office of the attorney general the position of statewide prosecutor. The statewide prosecutor shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is affecting or has affected two or more judicial circuits as provided by general law.
Section 16.56(1)(a), Florida Statutes (1987), further explains that the office of statewide prosecutor may:
Investigate and prosecute the offenses of bribery, burglary, criminal fraud, criminal usury, extortion, gambling, kidnapping, larceny, murder, prostitution, perjury, and robbery; of crimes involving narcotic or other dangerous drugs; of any violation of the provisions of the Florida RICO (Racketeer Influenced and Corrupt Organization) Act; ... or of any attempt, solicitation, or conspiracy to commit any of the crimes specifically enumerated above. The office shall have such power only when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.
It seems relatively clear that the statewide prosecutor has the power to prosecute crimes only if they involve two or more judicial circuits and are either part of a related transaction or part of an organized criminal conspiracy.
The question is whether the provisions in the statutes and constitution require the statewide prosecutor to show on the face of the information that the offense occurred in two or more circuits or whether it need be shown at all and, if so, whether it can be shown by extrinsic evidence. Appellant seeks to analogize two cases involving a similar issue in the context of an indictment handed down by the statewide grand jury.
The statewide grand jury is a creature similar to the statewide prosecutor also born of the Florida Statutes. The legislative intent is described as follows:
It is the intent of the Legislature in enacting this act to strengthen the grand jury system and enhance the ability of the state to detect and eliminate organized criminal activity by improving the evidence-gathering process in matters which transpire or have significance in more than one county.
Furthermore, the subject matter jurisdiction of the statewide grand jury parallels that of the statewide prosecutor's with regard to crimes which can be indicted or prosecuted, to wit:
when any such offense is occurring or has occurred, in two or more judicial circuits as part of a related transaction or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.
Two cases have interpreted this language. In State v. Ostergard, 343 So.2d 874 (Fla. 3d DCA 1977), the defendants were indicted by a statewide grand jury for gambling offenses and moved to dismiss the indictments because they involved only crimes occurring in Dade County. (The 1977 version of section 905.34 was substantially similar to the above except that it used the term "counties" instead of "judicial circuits.") The third district found that the indictments were defective and held that absent the proper jurisdictional allegations on the face of the indictments, the statewide grand jury was without authority to properly indict the defendants and dismissal was proper.
The second case is McNamara v. State, 357 So.2d 410 (Fla.1978), where the defendant was indicted by a statewide grand jury for a gambling offense which occurred in only one county. The supreme court approved the holding in Ostergard, specifically quoting large portions of the opinion, including Judge Barkdull's special concurrence wherein he noted:
The jurisdiction of the Statewide Grand Jury is limited to certain crimes which have " * * * occurred, in two or more counties as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more counties." Section 905.34, Fla.Stat. It has no more right to indict for a crime committed in a single county than a Grand Jury for the Eleventh Judicial Circuit in and for Dade County would have the right to indict for a crime committed in the Broward circuit.
The Legislature might have given the statewide Grand Jury such power, but it did not.
Ostergard, 343 So.2d at 877 (Barkdull, J., specially concurring).
We therefore hold,...
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