JOSEPH JAMES SPINA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the circumstantial evidence presented was insufficient to sustain a criminal conviction for operating a gambling room.
The defendant was the only person present when police entered a room and received phone calls from individuals wishing to place bets. The State charge…
The full statement of facts, procedural history, and disposition for this case are member content.
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The appellant was convicted of bookmaking and operating a gambling room. This appeal concerns itself only with the conviction for the operation of a gambling room, which was charged pursuant to § 849.01, Fla.Stat. (1965), F.S.A. This statute provides that one who by himself or agent “ * * * keeps, exercises or maintains a gambling table or room * * shall be guilty of the crime.
The case made by the State established (1) that the defendant was the only one present in the room when the police broke in; (2) that phone calls were received in which the caller wished to place a bet and asked for “Joey”.
While these facts are persuasive to the ordinary mind that the appellant, Joseph Spina, was actually operating the room, they are not sufficient as legal proof to sustain a criminal conviction. The rule is that circumstantial evidence to be sufficient to sustain a conviction must be such that the only reasonable implication is that of guilt. Harrison v. State, Fla.App.1958, 104 So.2d 391; LaMonte v. State, Fla.App.1962, 145 So.2d 889.
This conviction must be reversed upon the failure of the State to prove that the defendant either owned or controlled the gambling room. See Creash v. State, 131 Fla. Ill, 179 So. 149 (1938); Stanger v. State, Fla.App.1960,117 So.2d417.
Reversed.
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Citator
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Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)…conviction for unlawful possession of marijuana reversed); Gallagher v. State, 291 So. 2d 252 (Fla. 4th DCA 1974) (state’s evidence deemed insufficient to establish a delivery of marijuana; delivery of marijuana conviction reversed); Spina v. State, 203 So. 2d 20 (Fla. 3d DCA 1967) (state's evidence deemed insufficient to establish that defendant owned or controlled a room where, admittedly, gambling was taking place; convictions for bookmaking and operating a gambling room reversed); Maples v. State, 183 So…
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Miller v. State, 270 So. 2d 423 (Fla. 3d DCA 1972)…App.1970, 232 So. 2d 232; Rhoden v. State, Fla.App. 1969, 227 So. 2d 349; Garcia v. State, Fla.App. 1969, 227 So. 2d 209; Forbes v. State, Fla.App.1968, 210 So. 2d 246; Williams v. State, Fla.App. 1968, 206 So. 2d 446; Spina v. State, Fla.App. 1967, 203 So. 2d 20. In the instant case the complaining witness stated that upon returning home one evening she was rushed by a black man approximately 5 feet 10 inches tall in a white short sleeve shirt who snatched her purse. Another witness stated that he saw a bl…
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Hilding v. State, 291 So. 2d 111 (Fla. 4th DCA 1974)…action from which the inference is derived supports that inference. Circumstantial evidence in a criminal case must be inconsistent with innocence to support a conviction. Wright v. State, Fla.App.1966, 182 So. 2d 273; Spina v. State, Fla.App.1967, 203 So. 2d 20; Frank v. State, Fla. 1935, 121 Fla. 53, 163 So. 223. It follows that an inference cannot support a finding of knowledge because as to the word “it” the interpretations are countless. The term might indeed refer to cocaine; it could equally refer to…
Authorities Cited
- Harrison v. State, 104 So. 2d 391 (Fla. 1st DCA 1958)
- Creash v. State, 131 Fla. 111 (Fla. 1938)
- Vira P. Stansbury v. Stansbury, 145 So. 2d 889 (Fla. 3d DCA 1962)