STATE OF FLORIDA, APPELLANT,
v.
MARVIN WHITE, APPELLEE
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Florida's Second District Court of Appeal reversed the dismissal of a bookmaking information, holding that an information charging multiple acts of betting need not explicitly allege habitualness to survive a motion to dismiss, even though the state must prove habitualness at trial.
An information charging bookmaking is not fatally defective merely because it does not explicitly allege the element of habitualness when it tracks the statutory language and charges multiple acts.
[1] An information charging bookmaking that tracks the statutory language and alleges multiple acts of betting is sufficient to withstand a motion to dismiss even if it does…
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Join FLexlaw to unlock all legal intelligenceMarvin White was charged with four counts of bookmaking under Florida Statutes section 849.25(1) for taking or receiving bets on professional baseball…
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PER CURIAM.
Appellant, State of Florida, appeals from an order granting a motion to dismiss an amended information purporting to charge appellee, Marvin White, with four counts of bookmaking in violation of section 849.-25(1), Florida Statutes (1981). Appellee was charged with taking or receiving bets (on various dates) on professional baseball, football and college football games. The wording of the counts of the information tracked the wording of section 849.25(1). Appellee argues that the decision of this court in State v. Tate, 420 So. 2d 116 (Fla. 2d DCA 1982), requires that an information charging bookmaking, in order not to be fatally defective, must charge the defendant with the element of habitualness. Tate does not so hold, and we, therefore, reverse.
This court in State v. DiGuillio, 413 So. 2d 478 (Fla. 2d DCA 1982), considered and sustained an information nearly identical with the amended information dismissed below. While the state must, in order to convict for the offense of bookmaking, prove more than an isolated act of placing a bet, if the information tracks the language of the statute in charging multiple acts, it is sufficient to withstand a motion to dismiss.
Reversed and remanded.
BOARDMAN, A.C.J., and RYDER and CAMPBELL, JJ., concur.
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Kozich v. Hartford Ins. Co. OF Midwest, 609 So. 2d 147 (Fla. 4th DCA 1992)…o deny either party a hearing must be construed as a denial of due process. See Berchtold v. Griffin, 592 So. 2d 377 (Fla. 4th DCA 1992); Mondestin v. Duval Fed. Sav. and Loan Assoc., 500 So. 2d 580 (Fla. 4th DCA 1986); Wagner v. Vigor Island Corp., 443 So. 2d 469 (Fla. 5th DCA1984). We express no opinion as to the merits of appellee’s motion for summary judgment. Appellate review of the merits would be premature given the trial court’s failure to provide appellant an opportunity to be heard. Appellant also…
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Berchtold v. Griffin, 592 So. 2d 377 (Fla. 4th DCA 1992)…ice of the notice of the time and place of hearing on the appellants but also that the hearing be held for the motion noticed in the notice of hearing. Anything else would have serious due process implications. See also Wagner v. Vigor Island Corp., 443 So. 2d 469 (Fla. 5th DCA 1984). LETTS and STONE, JJ., concur.…
Authorities Cited
- State v. DiGUILLIO, 413 So. 2d 478 (Fla. 2d DCA 1982)
- State v. Tate, 420 So. 2d 116 (Fla. 2d DCA 1982)