THOMAS JOSEPH VOGEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.; THOMAS JOSEPH VOGEL, PETITIONER, V. GEORGE L. CANSLER, AS CORRECTIONS ADMINISTRATOR, VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS, AND AS DIRECTOR OF THE VOLUSIA COUNTY CORRECTIONAL FACILITY, RESPONDENT
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The court held that a conviction for a non-existent crime constitutes fundamental error, allowing for retrospective application of a Supreme Court ruling that abolished the crime.
[1] A conviction for a crime that has been judicially declared not to exist constitutes fundamental error, even if not objected to at trial.
[2] A judicial decision that a particular act does not constitute a crime will be applied retrospectively to cases pending on direct appeal.
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Join FLexlaw to unlock all legal intelligenceVogel was convicted of attempted possession of burglary tools. While his direct appeal was pending, the Florida Supreme Court held that this crime doe…
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BOYER, Judge.
Vogel was convicted of attempted possession of burglary tools. Judgment and sentence was entered May 25, 19.78. A direct appeal was timely taken to this court, Case No. KK-274.
On September 21, 1978, while Vogel’s appeal was pending, the Florida Supreme Court held in State v. Thomas, 362 So. 2d 1348 (Fla.1978) that there is no such crime in Florida as attempted possession of burglary tools.
On September 27,1978, petitioner filed in this court a petition for writ of habeas corpus, Case No. LL-272.
By separate order the two eases above mentioned have been sua sponte consolidated.
The State urges that since Vogel failed to make any objection at trial regarding the instruction and charge relating to attempted possession of burglary tools he may not do so here. While it is true that as a general rule, a person will not be heard to complain on appeal about a matter which could have been raised as error in the trial court but was not, a well known exception is “fundamental error”.
Fundamental error has been defined as error which goes to the foundation of the case or goes to the merits of the cause of action. (Sanford v. Rubin, 237 So. 2d 134 (Fla.1970)) We are of the view that that doctrine is applicable sub judice. (c. f. Hornsby v. State, 352 So. 2d 954 (Fla. 1st DCA 1977))
Although the Supreme Court did not announce in State v. Thomas, supra, whether that decision should be given retrospective or prospective application, we apply it retrospectively. Judicial conscience cannot allow a person to remain imprisoned for a crime which the Supreme Court has held does not exist. Such is especially true where, as here, a timely appeal from adjudication of guilt was pending at the time the Supreme Court rendered its decision determining that there was no such crime.
Accordingly, the judgment and sentence appealed in Case No. KK-274 are reversed and the petition for writ of habeas corpus in Case No. LL-272 is granted. Vogel shall be forthwith released from incarceration under and by virtue of said judgment and sentence.
IT IS SO ORDERED.
McCORD, C. J., and SMITH, J., concur.
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State v. Sykes, 434 So. 2d 325 (Fla. 1983)…ate may only punish one who has committed an offense; and an “offense” is an act clearly prohibited by the lawful authority of the state, providing notice through published laws. See, e.g., Pagano v. State, 387 So. 2d 349 (Fla.1980); Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979); Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA), approved, 340 So. 2d 928 (Fla.1976). Only by legislative authority may a criminal offense be defined. Adams v. Murphy, 653 F. 2d 224 (5th Cir.1981), cert. denied, 455 U.S. 920,1…
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Hill v. State, 730 So. 2d 322 (Fla. 1st DCA 1999)…nd sentence,” fundamental error — i.e., “error ... which amounts to a denial of due process” — can be raised for the first time in a post-conviction proceeding. Willie v. State, 600 So. 2d 479, 482 (Fla. 1st DCA 1992). As we noted in Vogel v. State, 365 So. 2d 1079, 1080 (Fla. 1st DCA 1979) (fundamental error required reversal of conviction of attempted possession of burglary tools, an offense that Supreme Court of Florida held was not a crime, in opinion issued while defendant’s appeal was pending), the “[jju…
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O'Connor v. State, 590 So. 2d 1018 (Fla. 5th DCA 1991)…to reverse the adjudication on the conspiracy count because the lack of any proof to support the charge constitutes fundamental error. See Wood v. State, 544 So. 2d 1004 (Fla.1989); Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987); Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979). We requested supplemental appellate briefs on this issue. The testimony at trial established that Wright, a convicted felon, agreed to cooperate and testify against any person that he had associated with in the drug business, u…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- State v. Thomas, 362 So. 2d 1348 (Fla. 1978)
- Hornsby v. State, 352 So. 2d 954 (Fla. 1st DCA 1977)