AARON W. JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aaron Jenkins appealed his conspiracy conviction, challenging whether amended Florida law increasing penalties for contraband introduction could be applied retroactively to a conspiracy that commenced before the amendment's effective date. The court affirmed, holding that because some overt acts occurred after the effective date, the amended statute could constitutionally be applied by analogy to RICO precedent.
The amended statute could be applied to the conspiracy because at least one overt act of the conspiracy occurred after the effective date, making the application consistent with ex post facto prohibitions. The double jeopardy and variance contentions were without merit. A defendant is not entitled to a bill of particulars specifying the exact date of a crime when the exact date is unknown.
[1] A defendant is not entitled to a bill of particulars specifying the exact day upon which a crime occurred if the exact date is not known.
[2] A conspiracy statute may be applied to criminal activities occurring before the effective date of an amendment if at least one act constituting the conspiracy occurred af…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“By analogy to the reasoning applied in the RICO cases, since acts in the conspiracy here clearly occurred after the effective date of the statutory amendment, the mere fact that the conspiracy commenced before the effective date of the amendment does not render the application of the amended law to appellant's crime an impermissible retroactive application of the law.”
Establishes the court's holding that amended statutes can be applied to ongoing conspiracies when at least one act occurs after the effective date.
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Join FLexlaw to unlock all legal intelligenceJenkins was charged with conspiracy to introduce contraband into a state penal institution. The conspiracy involved acts occurring both before and aft…
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LARRY G. SMITH, Judge.
Appellant’s contention that his double jeopardy rights were infringed, or that he was prejudiced in the defense of the conspiracy charge for which he was tried by reason of a material variance between the information and bill of particulars and the proof at the trial, have been considered and found to be without merit. We also disagree with appellant's contention that the changes in the substantive statute, Section 944.47, Florida Statutes, amended effective July 1, 1982, could not be applied to the conspiracy charge against him, and therefore affirm.
A defendant is not entitled to a bill of particulars specifying the exact day upon which a crime occurred if the exact date is not known. State v. McGregor, 409 So. 2d 504 (Fla. 4th DCA 1982).
Moreover, as appellant concedes, there was only one conspiracy here. Epps v. State, 354 So. 2d 441 (Fla. 1st DCA 1978).
However, it is abundantly clear that acts constituting the conspiracy occurred both before and after the effective date of the statutory amendment to Section 944.47, which increased the penalty for introduction of contraband into a state penal institution from a third degree felony to a second degree felony, thereby causing the conspiracy to commit that crime to become a felony, rath er than a simple misdemeanor. Cases decided under the RICO statute, Section 943.-462, Florida Statutes (1979), hold that that statute, applying to a course of ongoing criminal activities, much as a conspiracy does, may be applied to criminal activities occurring before the effective date of that act, and thus not offend constitutional prohibitions against ex post facto laws, as long as at least one act occurred after the effective date of the statute. Carlson v. State, 405 So. 2d 173, 174 (Fla.1981); State v. Whiddon, 384 So. 2d 1269, 1271 (Fla.1980).
By analogy to the reasoning applied in the RICO cases, since acts in the conspiracy here clearly occurred after the effective date of the statutory amendment, the mere fact that the conspiracy commenced before the effective date of the amendment does not render the application of the amended law to appellant’s crime an impermissible retroactive application of the law.
Furthermore, evidence of prior, similar criminal conduct is admissible to prove the existence, formation or organization of a conspiracy charged. US. v. Torres, 519 F. 2d 723 (2nd Cir.1975), cert. den. 423 U.S. 1019, 96 S.Ct. 457, 46 L.Ed.2d 392 (1975); 20 A.L.R.Fed. § 4(c), Conspiracy — “Prior Similar Conduct.”
AFFIRMED.
WIGGINTON and NIMMONS, JJ., concur.
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Rickie E. Wilder v. State, 587 So. 2d 543 (Fla. 1st DCA 1991)…vidence); Perez v. State, 561 So. 2d 1265 (Fla. 3d DCA), rev. denied, 576 So. 2d 289 (Fla.1990) (conspiratorial agreement can be inferred from circumstantial evidence indicative of an overall plan). Finally, as this court stated in Jenkins v. State, 444 So. 2d 1108, 1109 (Fla. 1st DCA 1984), evidence of prior, similar conduct is admissible to prove the existence, formation or organization of a conspiracy.1 On this record, viewed in the light most favorable to the state, the evidence of Bell's participation in…
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Duer v. Moore, 765 So. 2d 743 (Fla. 1st DCA 2000)…ation should be interpreted as charging a single, “continuing assault.” Cf. Puffinberger v. State, 581 So. 2d 897, 900 (Fla.1991) (finding the “offense ... continued after the ... effective date of the permitted guideline ranges”); Jenkins v. State, 444 So. 2d 1108, 1108 (Fla. 1st DCA 1984) (finding it “abundantly clear that acts constituting the conspiracy occurred both before and after the effective date of the statutory amendment”). Petitioner has been convicted of offenses that may or may not have been co…
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Brown v. Moore, 800 So. 2d 329 (Fla. 1st DCA 2001)…time he began the conspiracy of which he was convicted, instead of under the statute in effect at the time the conspiracy ended. A crime spanning a change in the gain time statute invokes the provisions of the latter statute. See, Jenkins v. State, 444 So. 2d 1108 (Fla. 1st DCA 1984). See also, Leyvas v. United States, 371 F. 2d 714 (9th Cir.1967). The law deems an offender who persists in the commission of a continuing crime, in the face of a change in a statute affecting the punishment or gain time with reg…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hicks v. Virginia, 423 U.S. 1019 (U.S. 1975)
- Rivera v. United States, 423 U.S. 1019 (U.S. 1975)
- United States v. Torres, 519 F.2d 723 (2d Cir. 1975)
- Norris Epps v. State, 354 So. 2d 441 (Fla. 1st DCA 1978)
- THE Florida BAR v. Byron, 384 So. 2d 1269 (Fla. 1980)
- Carlson v. State, 405 So. 2d 173 (Fla. 1981)
- State v. McGREGOR, 409 So. 2d 504 (Fla. 4th DCA 1982)