JAY NELSON LOVE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court reviewed a circuit court's reversal of a trial court's dismissal of a criminal information charging unlawful possession of a blackjack table. The key issue was whether the statute requires proof of scienter (intent to use for gambling) as an essential element of the crime.
The statute does not require scienter as an essential element. Mere possession of a blackjack table violates the statute regardless of intent or purpose, and the information need not allege gambling intent or actual gambling to state a cause of action.
[1] A statute that denounces the doing of an act as criminal without specifically requiring criminal intent does not necessitate proof of criminal intent.
[2] The possession of a blackjack table, without more, can constitute a violation of a statute prohibiting unlawful possession of such a device, even if the statute does not…
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Join FLexlaw to unlock all legal intelligence“the Information failed to state a cause of action because it omitted an essential element of the crime, scienter (i.e., that gambling occurred or that there was any intent to do so)”
Articulates Love's argument that the information was deficient for failing to allege the intent element
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLove was charged with unlawful possession of a blackjack table in violation of Florida Statutes § 849.231. The trial court granted Love's motion to di…
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PER CURIAM.
By the petition for certiorari in this matter, we are called upon to review an opinion of the Circuit Court, Appellate Division, which reads as follows:
Fierro, Eugene J., J.
“This is an appeal that arises from the granting of the Defendant’s (Appellee) Motion to Dismiss the State’s Information wherein the Defendant asserted that the Information which charged the Defendant with unlawful possession of a blackjack table in violation of Section 849.231, Florida Statutes, did not allege that the Defendant was using the device for gambling, nor that he intended to do so.
As such, the Defendant argued, the Information failed to state a cause of action because it omitted an essential element of the crime, scienter (i.e., that gambling occurred or that there was any intent to do so).
On its face the statute does not state whether or not “scienter” is an essential element to be either alleged or proved. The appellant argues that whereas the statute denounces the doing of an act as criminal without specifically requiring criminal intent, it is not necessary for the State to prove that the commission of such act was accompanied by criminal intent.
The appellee argues that, under the statute, even the mere possession of a ‘souvenir’ such as a ‘croupier’s stick from Las Vegas’ would be a violation of the statute. He cites Schultz v. State, 361 So. 2d 416 (Fla.1978) in support of his contention that scienter is or should be required.
We note that the Supreme Court in Schultz finds the statute constitutional. The appellee’s argument is somewhat compelling and while a blackjack table could be used or designated to be used for a legal purpose, as well as an illegal purpose, it is not for this Court to inquire into the legislature’s intent in drafting the statute hr question. The statute on its face clearly does not require scienter. We concur that the Information filed against he Defendant was improperly dismissed by the trial court.
REVERSED AND REMANDED.
(ROBINSON and BLOOM, JJ., concur).”
Following review of the Supreme Court’s opinion in Schultz v. State, supra, cited by the Circuit Court, we are of the view that no departure from the essential requirements of the law has been occasioned by the appellate division’s opinion, and to the contrary, we approve it and deny certiorari.
Certiorari denied.
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Beshore v. Dep't OF Fin. Servs., 928 So. 2d 411 (Fla. 1st DCA 2006)…even in some criminal matters, scienter is not always a requirement. See, e.g., Huff v. State, 646 So. 2d 742 (Fla. 2d DCA 1994) (holding that scienter was not an element of a statute prohibiting the unauthorized sale of securities); Love v. State, 584 So. 2d 645 (Fla. 3d DCA 1991) (holding that scienter was not an element of a statute prohibiting, the possession of gambling devices). Appellant and the Florida Association of Insurance Agents both argue policy reasons why section 626.901(1) should not be a st…
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Metro Dade Cnty. v. BUY Wise, Inc., 625 So. 2d 984 (Fla. 3d DCA 1993)…representations which were known, or should have been known, to be untrue or misleading. A violation of the ordinance, therefore, may rest on a grossly negligent misrepresentation as well as a misrepresentation made with scienter. See Love v. State, 584 So. 2d 645 (Fla. 3d DCA 1991) (where statute clearly does not require scienter, court may not require State to prove that element). Certiorari granted.…
Authorities Cited
- Schultz v. State, 361 So. 2d 416 (Fla. 1978)