HERMAN LAMAR GOLDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herman Lamar Golden appeals his convictions for racketeering, conspiracy to commit racketeering, living from earnings of prostitution, and keeping a house of ill fame. The appellate court affirms his convictions for racketeering, conspiracy, and living off earnings, but reverses his conviction for keeping a house of ill fame based on the Florida Supreme Court's finding that the statute was unconstitutionally vague.
The court affirmed convictions for racketeering, conspiracy to commit racketeering, and living from earnings of prostitution, finding sufficient evidence. The court reversed the conviction for keeping a house of ill fame due to the statute's unconstitutional vagueness as established in Warren v. State. The court directed the trial court to enter judgment for the lesser included offense of keeping a house of prostitution and to resentence accordingly.
[1] A conviction for keeping a house of ill fame must be reversed when the statute under which it was obtained has been declared unconstitutionally vague.
[2] A court may direct the entry of judgment for a lesser included offense when the evidence supports it and the original conviction must be reversed.
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Explains the basis for reversing the conviction for keeping a house of ill fame despite the trial court not having the Warren decision at the time of conviction.
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Join FLexlaw to unlock all legal intelligenceHerman Lamar Golden was convicted of racketeering, conspiracy to commit racketeering, living from earnings of prostitution, and keeping a house of ill…
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HALL, Judge.
Herman Lamar Golden contends the trial court erred in denying his motions for judgment of acquittal and a new trial on charges of racketeering, conspiracy to commit racketeering, living from earnings of prostitution, and keeping a house of ill fame.1 He contends the evidence was insufficient to support his convictions. We find no merit in his contentions and sustain his convictions on racketeering, conspiracy, and living off earnings. We reverse, however, Golden’s conviction for keeping a house of ill fame.
As we stated in Wolfe v. State, 576 So. 2d 915 (Fla. 2d DCA 1991), our supreme court overturned the ill fame statute as unconstitutionally vague. See Warren v. State, 572 So. 2d 1376 (Fla.1991). Warren v. State reversed earlier supreme court and district court of appeal decisions interpreting the ill fame statute as constitutional. Since the Warren opinion had not yet been filed at the time of Golden’s conviction, the trial court did not have the benefit of that decision.
Though Golden’s conviction and sentence for keeping a house of ill fame must be reversed, we find the evidence adduced at trial was sufficient to establish Golden’s guilt for the lesser included offense of keeping a house of prostitution under section 796.07(2)(a), Florida Statutes (1987). See Wolfe v. State. As we are authorized to do under section 924.34, Florida Statutes (1987), we direct the trial court to enter judgment for the lesser included offense and to resentence Golden accordingly.
Because we are setting aside one conviction while allowing the others to stand, the presumptive sentence under the guidelines could change. Therefore, a new scoresheet must be prepared for all of Golden’s convictions. If the scoresheet reflects a change in the presumptive sentence, Golden must be resentenced on all convictions. Accordingly, this case is reversed and remanded with directions consistent with this opinion.
SCHEB, A.C.J., and ALTENBERND, J., concur. . Herman Lamar Golden, James Jerome Wolfe, and Victoria Long were codefendants in the proceeding below. Wolfe’s and Long’s appeals were considered separately in case nos. 88-01962, 576 So. 2d 915, and 88-02328, 578 So. 2d 288, respectively.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pratt v. State, 668 So. 2d 1007 (Fla. 1st DCA 1996)…ses in which convictions had to be set aside because they were based on statutes later determined to be unconstitutional.” Paige v. State, 641 So. 2d 179, 181 (Fla. 5th DCA 1994); Harris v. State, 649 So. 2d 923 (Fla. 1st DCA 1995); Golden v. State, 578 So. 2d 480 (Fla. 2d DCA 1991). In Paige, the defendant was convicted of possession of cocaine with intent to sell within 200 feet of a public housing facility. Subsequently, the Florida Supreme Court in Brown v. State, 629 So. 2d 841 (Fla.1994), held the appli…
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Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994)…prove the offense for which the defendant was found guilty,” the statute has also been applied to cases in which convictions had to be set aside because they were based on statutes later determined to be unconstitutional. See, e.g., Golden v. State, 578 So. 2d 480 (Fla. 2d DCA 1991) (defendant’s conviction for keeping a house of “ill fame” reversed after Florida Supreme Court overturned the ill-fame statute as unconstitutionally vague; however, evidence was sufficient to establish the defendant’s guilt for ke…
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Hoskins v. Dep't of Bus. Reg., 592 So. 2d 1145 (Fla. 2d DCA 1992)…ed reversible error. Conduct in violation of section 796.07 is a lesser-included offense of that in violation of section 796.01. See Carlson v. State, 405 So. 2d 173 (Fla.1981); Wolfe v. State, 576 So. 2d 915 (Fla. 2d DCA 1991). Cf. Golden v. State, 578 So. 2d 480 (Fla. 2d DCA 1991) (appellate court, pursuant to section 924.34, Florida Statutes (1987), directed trial court to enter judgment for “lesser included offense” described in section 796.07(2)(a) after Warren v. State, 572 So. 2d 1376 (Fla.1991) overtu…
Authorities Cited
- Warren v. State, 572 So. 2d 1376 (Fla. 1991)
- Zebbie Thompkins v. State, 576 So. 2d 915 (Fla. 2d DCA 1991)
- Wolfe v. State, 576 So. 2d 915 (Fla. 2d DCA 1991)
- Long v. State, 578 So. 2d 288 (Fla. 2d DCA 1991)