Opinion
No. 80-1004.
September 1, 1982.
Appeal from the Circuit Court, Seminole County, Volie A. Williams, Jr., J.
Charles R. Trulock, Jr., Orlando, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a conviction for bookmaking, a violation of section 849.25, Florida Statutes (1981). The information charges:
. . . that Pasquale Thomas Leonetti, between September 1, 1979 and October 23, 1979 . . . did then and there engage in bookmaking contrary to Florida Statutes 849.25.
The appellant filed a motion at trial to dismiss the information on the basis that it was so vague and indefinite that it would not prevent multiple prosecutions for the same offense. See Rule 3.140( o), Florida Rule of Criminal Procedure.
The information in this case is as vague and indistinct as the information in State v. Covington, 392 So.2d 1321 (Fla. 1981), where the following allegations were ruled to be fatally deficient:
That the appellees, during the period from September, 1972 to January, 1979, "did directly or indirectly engage in transactions, practice or course of business with regard to the sale of the bonds of Lake Padgett Estates East Road and Bridge District, Extension No. 3, Pasco County, Florida, which operated as a fraud or deceit upon the said bondholders in connection with their purchase of the said bonds . . . contrary to Chapter 517.301(1)(c). . . ."
In State v. Dilworth, 397 So.2d 292 (Fla. 1981), the court held: "A mere allegation that an accused engaged in fraudulent transactions, practices, or course of business is not specific enough to inform a defendant of what he allegedly did wrong" and "an information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy." Id. at 294. (emphasis supplied). In this case there are no elements expressed, thus the information is so vague and indefinite that it violates Article I, Section 16 of the Constitution of the State of Florida and Article VI of the Articles in Amendment of the Constitution of the United States of America. This information is, on its face, as constitutionally deficient as would be one which merely charged that one "did in violation of Florida Statute 784.04 commit the crime of murder" or that one "did in violation of Chapter 810 engage in burglary" or that one "engaged in theft in violation of Florida Statute 812.014."
Section 849.25 limits the acts which would constitute the offense of bookmaking by its definition of bookmaking in subsection (1) which states:
(1) The term "bookmaking" means the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.
In order for an information to charge a crime sufficiently it must follow the statute, and charge each of the essential elements and sufficiently advise the accused of the specific crime with which he is charged. In a case of bookmaking, an information would be sufficient to charge the accused if it alleges the time and place, as is best known to the state, when and where the accused took or received a bet or wager concerning the result of the contest, trial, or event described in the statute. After all, the state must prove at trial what facts it maintains constitutes the violations of the statute; what burden is it to put in writing, before trial, the essential elements of the crime as alleged against the accused?
Because the information charging the appellant is fatally deficient we reverse the conviction of the appellant.
REVERSED.
COBB, J., concurs.
SHARP, J., dissents with opinion.
I dissent in this case because, under the circumstances presented by the record, I would affirm the trial judge's conclusion that the information was not
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 new prosecution for the same offense.
Fla. R. Crim. P. 3.140( o) (1981).
The information basically tracked the statute. Section 849.25(2), Florida Statutes (1981) provides, "Any person who engages in bookmaking shall be guilty of a felony. . . ." The information charged that Leonetti
between September 1, 1979 and October 23, 1979, in the said County and State [referring to Seminole County, State of Florida], did then and there engage in bookmaking contrary to Florida Statute 849.25.
Bookmaking is defined by the statute as
the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast, or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.
§ 849.25(1), Fla. Stat. (1981).
I do not think this information is impermissibly vague because of the acts charged. In State v. Dilworth, 397 So.2d 292 (Fla. 1981), the Florida Supreme Court upheld an information which charged the defendant with making false statements to obtain unemployment compensation. The defendant argued the information should be dismissed because it merely tracked the criminal statute and it failed to recite any specific misrepresentations which the defendant allegedly made. The court noted that in some cases merely reciting the applicable criminal statute was enough, and in others it was not. The analysis apparently turns on whether the statutory language is so generic that it fails to inform the defendant as to what criminal acts he allegedly committed. Examples of such too-generic charges are "lewd and lascivious" acts and "fraudulent transactions, practices or course of business." Id. at 293-94.
Whether or not "bookmaking" is too generic to pass muster has not been addressed by the Florida Supreme Court. Since the statute specifically defines "bookmaking," use of that term, without describing the kinds of bets taken, does not appear to me to make the information impermissibly vague. The information in this case is analagous to the information in Dilworth which withstood the same kind of challenge from the defendant who argued the kinds of misrepresentations had to be set forth in the indictment.
See State v. DiGuillio, 413 So.2d 478 (Fla. 2d DCA 1982).
Further, I do not think the time and place allegations are too vague. This case can be distinguished from State v. Barnett, 344 So.2d 863 (Fla. 2d DCA 1977) where a "bookmaking" indictment which tracked the statute was quashed as impermissibly vague. The indictment in Barnett alleged the crime occurred over a period of more than three months in three different counties. Here the information alleged a time span of two months but it specified Seminole County as the locus of the criminal acts. Neither the Barnett indictment nor the instant information described the kinds of betting involved. The Barnett court held that the indictment's time and place allegations were too vague. It said that, in view of the availability of a statement of particulars, no one of the Barnett deficiencies would itself have required the dismissal. Only when viewing the indictment as a whole did the court approve the trial court's dismissal.
The record shows Leonetti, immediately upon his arrest, stated to the police officers that he had been engaged in bookmaking in a borrowed apartment. His arrest was brought about by observations of him by one of the apartment renters during a two day time period. The bill of particulars limited the charge to those acts in that time frame. Under these circumstances I cannot say the trial court erred in deciding Leonetti was not in fact misled or confused in the preparation of his defense. As the court stated in Dilworth,
A statement of particulars provided Leonetti with precise details relating to a specific time (October 20, 21 and 22, 1979) and a specific place (the vicinity of Apt. 0-8, Regency Apartments, Seminole County, Florida).
With the advent of Florida's liberal discovery rules in criminal cases, along with the availability of a statement of particulars, a defendant is no longer forced to obtain information about the charge only from the charging document. While these discovery tools generally cannot cure a fatally vague charging document, they do reduce the danger of a defendant's being in doubt as to the specifics of his alleged wrongdoing or of his being subjected to a new charge arising from the same act. In other words, an information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy. (Emphasis added).State v. Dilworth, 397 So.2d at 294.