No.

80-480
District Court of Appeal of Florida, Fifth District

Gray v. State
404 So. 2d 388 (Fla. Dist. Ct. App. 1981)
Decided Oct 7, 1981

No. 80-480. The first question relates to the sufficiency of

these allegations to allege a crime.
October 7, 1981.
The word "witness," when used as a noun as in
Appeal from the Circuit Court, Orange County,
this statute, has two meanings that are sufficiently
389 Lon S. Cornelius, Jr., J. *389
different that the use of one meaning results in the
James B. Gibson, Public Defender, Mary Sue statute applying so broadly that the word witness
Donsky and T.R. Mott, Asst. Public Defenders, would have no moment, while the use of the other
Daytona Beach, for appellant. meaning assumes and requires the existence of
certain other ultimate facts not expressly required
Jim Smith, Atty. Gen., Tallahassee, Phillip D.
by the statute. The first meaning of "witness"
Havens and James Dickson Crock, Asst. Attys.
merely refers to one who has personal knowledge
Gen., Daytona Beach, for appellee.
of something. Since every person has personal
knowledge of something, to so construe the word
COWART, Judge.
"witness" in this statute would equate it with the
This case involves the sufficiency of the word "person" and would apply it so broadly as to
allegations in an information charging appellant deprive it of any significant meaning. The second
with violation of section 918.14(3)(a)(1), Florida meaning of the word "witness" is more narrow and
Statutes (1979), prohibiting "tampering with refers to a person who (a) has given, is giving, is
witnesses." The relevant portion of that statute expected, or has been asked or directed, to give (b)
provides: testimony (c) in some cause or proceeding (d)
390 before some forum or tribunal. *390 If this second
(3)(a) It is unlawful for any person: meaning of the word "witness" was intended, then
1. To cause a witness to be placed in fear the existence of some investigation, cause, trial or
by force or threats of force. proceeding and of some forum or tribunal is
essential as being a part of the meaning of the
The information alleges that: word witness. Additionally, the forum or tribunal
ARCHIE BEAUREGARD GRAY, JR. on should be limited to official governmental
the 1st day of May, 1979 in said County authorities. A list of such forums or tribunals is
and State, did, in violation of Florida made a part of a closely related subsection section
Statutes 918.14(3)(a), unlawfully cause 918.14(1), Florida Statutes (1979), but a similar
HILDA RICE, a witness for the State of list is not contained in subsection 918.14(3)(a)1,
Florida to be placed in fear by force or Florida Statutes (1979). State v. Murray, 349
threats of force. So.2d 707 (Fla. 4th DCA 1977). Murray holds that
under this statute "it must be alleged that the
defendant knew the alleged victim was a witness.

1
 Gray v. State 404 So. 2d 388 (Fla. Dist. Ct. App. 1981)

Some connection between the actions of the An information alleging in proper form material
defendant and the fact the alleged victim was and relevant ultimate facts which, if proven,
witness must also be alleged in order to allege a would establish all of the constituent elements set
violation of this statute which is in effect an forth in a constitutionally sufficient statutory
enhanced penalty statute." Id. at 708 (emphasis criminal offense ought to be sufficient to charge
added). that offense. In this case the information does
allege facts relating to all of the elements
In order for a statute proscribing conduct to be
expressly required by this statute, but it does not
constitutional, the legislature must have a
allege all elements essential to constitute the
legitimate interest in regulating such conduct and
crime. When a court construes a statute defining a
the statute enacted must reasonably and rationally
crime, elements cannot be properly supplied by
relate only to the conduct the legislature intends to
inference or taken by intendment.2 Neither should
prohibit. In the instant case, in order for such
courts by judicial fiat or decision supply elements
statutory prohibition to pass constitutional
essential to a criminal offense but which are
standards of definiteness and breadth of
omitted by the legislature from the statutory
application so as to avoid encompassing conduct
definition. Such a practice constitutes a judicial
which is essentially innocent, the statute should be
intrusion into the legislative branch of government
more narrowly worded to provide that it is
and disregards the court's duty to measure statutes
unlawful for any person (1) knowing (2) that a
against constitutional standards. Without
witness may give testimony (3) in some trial,
discussing the elements of this offense or
proceeding or investigation, (4) pending or to be
mentioning Murray, the Florida Supreme Court in
instituted in some [specifically described official
the recent case of Lee v. State, 397 So.2d 684 (Fla.
governmental] forum or tribunal, (5) to cause such
1981), has held this statute constitutional on the
witness to be placed in fear (6) by the use of, or
basis that it is sufficiently definite to convey a
threat to use, force, (7) with the intent to cause
definite warning as to the conduct proscribed,
such witness to withhold testimony or to testify
measured by common understanding and practice.
falsely. The statute actually only expressly
We are, of course, bound by that decision.
provides the fifth and sixth elements. Perhaps, by
a long reach, elements two, three and four could 2 Gibbs v. Mayo, 81 So.2d 739 (Fla. 1955);

be inferred from the use of the one word "witness" Smith v. State, 75 Fla. 468, 78 So. 530
but the necessity for an element of knowledge (1918).

(scienter) (being element one above) and intent

Article I, Sec. 16, of the Florida Constitution, as
(being element seven above) was pointed out in
well as comparable federal constitutional
Murray in 1977 and the legislature has not acted
provisions, requires that in all criminal
to supply those omissions. The legislature could
391 prosecutions the accused shall, *391 upon demand,
not, constitutionally, have intended to punish as a
be informed of the nature and cause of the
felony all conduct that would literally fall within
accusation against him, and shall be furnished a
the expressed statutory definition (elements five
copy of the charges. This provision, as well as
and six above).1
Florida Rule of Criminal Procedure 3.140(d),
1 Literally, the innocent but violent essentially requires that the charging document in
slamming of a door could unintentionally a criminal case must allege the essential facts
frighten or alarm a witness whose presence constituting the offense charged. The facts which
and status was unknown, and thereby are essential are those necessary to show the
violate this statute. jurisdiction of the court, to identify the accused
(Fla.R.Crim.P. 3.140(d)(2)), to show the time and

2
 Gray v. State 404 So. 2d 388 (Fla. Dist. Ct. App. 1981)

place of the commission of the offense (Fla.R. an ultimate fact essential to the allegation of a
Crim.P. 3.140(d)(3)) and facts which, if proved, criminal offense and when a charging document
would establish all of the elements of the offense fails to allege an essential element it fails to
charged. charge a criminal offense.
3 In recent years, the general trend of
The defendant did not move to dismiss the
information pursuant to Florida Rule of Criminal pleading in civil matters has developed

Procedure 3.190(c) for its failure to allege all such that "adequacy of notice" to the other
party is the main concern. See, e.g.,
essential elements of this offense. That rule
Fla.R.Civ.P. 1.110.
provides in part that "except for objections based
upon fundamental grounds every ground for We quote with approval from State v. Fields, 390
motion to dismiss which is not presented by a So.2d 128 (Fla. 4th DCA 1980):
motion to dismiss within the time hereinabove
provided for shall be taken to have been waived." Our analysis begins with the proposition
Thus the next question is whether the failure of an that there is a significant distinction
information to allege all essential elements of an between an indictment or information
offense is "fundamental" within the meaning of which completely omits an essential
this rule and the usual rule that only "fundamental element of an offense and one which
error" can be addressed on appeal without first imprecisely or incompletely alleges an
having been presented to, and ruled upon by, the essential element of a crime. In the former
trial court. situation, the total omission is fatal. State
v. Dye, 346 So.2d 538, 541 (Fla. 1977). In
We believe that it is constitutionally essential, and the latter category, however, an imperfect
therefore fundamentally necessary, for the allegation, unless timely challenged by a
charging document in a criminal case to allege all motion to dismiss, shall be deemed to have
of the essential elements of a criminal offense. been waived. Rule 3.190(c), Fla.R. Crim.P.
The "notice" theory of pleading3 relates only to
civil cases. More than merely warning of Id. at 130.
prohibited conduct, or notifying the defendant that Since failure of the charging document to charge a
he has been accused, the charging document in a crime goes to the foundation of the case and the
criminal case constitutes a serious assertion by the merits of the cause, the error would appear to be
State that the allegations contained therein are all 392 "fundamental"4 *392 and not subject to the
that is necessary for the State to prove at trial in contemporaneous objection rule. Additionally, the
order to secure a conviction. Further, the exception for jurisdictional defects5 allows
allegations of the elements of the offense in the
appellate review where a charging instrument fails
charging document are part of the constitutionally
to charge an offense. Bridges v. State, 376 So.2d
required notice and serve to advise the accused as
233 (Fla. 1979). Thus, even though a defendant
to the ultimate facts that are to be litigated at his
may have entered a plea of guilty, where the
trial. The defense is entitled to rely on the
information wholly fails to charge a crime against
sufficiency of this notice in preparation for trial,
the defendant, it is void and must be set aside.
calling affirmative and rebuttal witnesses as
Catanese v. State, 251 So.2d 572 (Fla. 4th DCA
necessary to put in issue those factual allegations
1971).
to be actively contested, with assurance that, at
4 Clark v. State, 363 So.2d 331 (Fla. 1978).
trial, the State can present only incriminating
evidence probative of the ultimate facts alleged in The fundamental nature of this error has
been stated various ways but review has
the charging document. "Essential element" means

3
 Gray v. State 404 So. 2d 388 (Fla. Dist. Ct. App. 1981)

still been granted. See, e.g., Mills v. State, court jurisdiction is lost. If the elements
58 Fla. 74, 51 So. 278, 280 (1910) ("If the alleged adequately charge a misdemeanor,
indictment be defective in the statement of jurisdiction rests in the county court;
matter to be charged, if it entirely omits an however, if the elements alleged utterly fail
averment which is an element of the to charge a crime of any magnitude
offense, or fails to state circumstances (misdemeanor or felony), jurisdiction does
which constitute the definition of the not "spring back" to the circuit court, it
offense charged when necessary to advise simply does not exist.
the prisoner of the charge against him, such
defect or omission will be fatal to the Although courts have gone so far as to hold a
indictment. . . ."); Brown v. State, 42 Fla. defendant to a waiver of objection to a charging
184, 27 So. 869, 870 (1900) ("if an document which fails to charge a criminal offense,
indictment wholly fails to state a criminal as in West v. State, 149 Fla. 436, 6 So.2d 7 (1942),
charge against the defendant, he may take relief from a conviction based on a charging
advantage of that fatal defect primarily in document which fails to charge a criminal offense
the appellate court. . . ."). is generally granted in habeas corpus proceedings.
5 The jurisdictional nature of a failure to See Gibbs v. Mayo, 81 So.2d 739 (Fla. 1955);
allege every element of a particular crime
State ex rel Kelly v. Whisnant, 80 So.2d 611 (Fla.
is most clearly presented when the state 1955). A state judgment of conviction of a
tries to allege a felony in a single count nonexistent offense would appear to deny state
charging document but, because of the and federal constitutional due process and
omitted element, only alleges a therefore warrant relief by habeas corpus. See
misdemeanor. Unless a felony is Adams v. Murphy, 598 F.2d 982 (5th Cir. 1979)
adequately charged, the circuit court does (involved in Adams v. Murphy, 394 So.2d 411
not have jurisdiction to proceed and any (Fla. 1981)). It makes no sense to hold on appeal
action it subsequently takes is void. See, that the failure to attack a charging document for
e.g., Nelson v. State, 398 So.2d 920 (Fla.
failure to allege a crime by pretrial motion under
5th DCA 1981) (information charging
Florida Rule of Criminal Procedure 3.190(c)
defendant with willfully or carelessly
constitutes a waiver and then to remedy the result
burning a field only charged a
of that defect and that holding by later granting
misdemeanor and circuit court therefore
habeas corpus. Accordingly, we hold that an
did not have jurisdiction); Radford v. State,
360 So.2d 1303 (Fla. 2d DCA 1978)
objection that a charging document fails to allege
(information that failed to allege defendant all essential elements and wholly fails to allege a
"knowingly" battered a law enforcement crime is an objection "based on fundamental
officer failed to charge a felony and grounds" within the exception in Florida Rule of
jurisdiction of the battery alleged was in Criminal Procedure 3.190(c) and can be raised for
the county court); Pope v. State, 268 So.2d the first time on appeal. For the reasons given
173 (Fla. 2d DCA 1972), cert. discharged, above we further hold that the information in this
283 So.2d 99 (Fla. 1973) (information that case failed to allege all essential elements
failed to allege that accused was previously necessary to charge a crime. Therefore, we reverse
convicted of a drug offense or that this
the conviction, vacate the sentence and remand for
offense involved more than five grams
further proceedings, if any.
failed to allege a felony and jurisdiction of
the misdemeanor alleged was in county REVERSED AND REMANDED.
court). If a felony is not adequately alleged
(an essential element is omitted), circuit
FRANK D. UPCHURCH, Jr., J., concurs.

4
 Gray v. State 404 So. 2d 388 (Fla. Dist. Ct. App. 1981)

COBB, J., concurs specially with opinion. I concur only in the result reached by the majority
opinion for the reason that the state failed to prove
COBB, Judge, concurring specially. a nexus between the actions of the defendant and
the status of Hilda Rice as a state witness. See
State v. Murray, 349 So.2d 707 (Fla. 4th DCA
393 1977). *393