ROSE LEE JOSEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Rose Lee Josey appeals her conviction for attempted abortion, claiming insufficient evidence of an overt act beyond mere preparation and improper search and seizure. The Florida appellate court affirmed her conviction, finding the evidence sufficient and the arrest and search lawful.
The court held that the defendant's acts went beyond mere preparation and there was sufficient, competent and substantial evidence to support a finding that she committed an overt act. The court also held that the arrest was proper and the search was lawful, finding no reversible error on either ground.
[1] An overt act in furtherance of a crime must be coupled with intent and carried beyond mere preparation, but fall short of the ultimate design's execution.
[2] An act, even if equally consistent with guilt and innocence, may be considered beyond mere preparation when criminal intent can be independently found from other evidence…
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“there must be an intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design.”
The legal standard for attempted abortion requiring proof of an overt act beyond mere preparation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJosey was charged with attempted abortion following a non-jury trial. A policewoman was voluntarily admitted into the premises where Josey was present…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Area Within Immediate Control cases and more on FLexlaw
The defendant, Rose Lee Josey, appeals from her judgment of conviction for the crime of attempted abortion after a non jury trial.
She seeks reversal because of a claimed insufficiency in the evidence to sufficiently establish that she committed any overt act. She relies on Gustine v. State, 86 Fla. 24, 97 So. 207 (1923), which held:
“ * * * there must be an intent to commit a crime, coupled with an overt act *737apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design.” (Emphasis added.)
The state responds that the acts of the defendant went beyond mere preparation and are governed by Carter v. State, Fla. 1963, 155 So.2d 787, which stated:
“Even if we assume that the overt act here involved, the use of a speculum'employed in numerous medical examinations, is itself equally consistent with guilt and innocence, a distinction must be drawn between the situation where all the facts in evidence can be otherwise explained and the case, such as that at bar, where there is evidence from which the jury may find criminal intent quite independent of the overt act toward execution, which need not in itself be unlawful except as a fragment of the intended offense. In the circumstances of this case the use of the instrument cannot reasonably be characterized as mere preparation.”
We hold that the trial judge was correct in determining that the acts of this defendant went beyond mere preparation and there is sufficient, competent and substantial evidence to support a finding that the defendant committed an overt act.
Defendant claims that the trial court erred in denying her motion to suppress any or all of the evidence seized after she was placed under arrest. She relies on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); and Benefield v. State, Fla.1964, 160 So.2d 706.
The record on appeal reveals that defendant was properly arrested by a policewoman who had been voluntarily admitted and was already inside the premises discussing the abortion with the defendant. The arrest was proper. See Melton v. State, Fla. 1954, 75 So.2d 291. The actions of the police in making this arrest and search were distinguishable from those recited in Bene-field, supra, and it is not applicable.
The record does not show that the defendant specifically raised or argued in the trial court the point argued for reversal on appeal under the rule pronounced in Chimel, supra.
Assuming arguendo that the rule pronounced in Chimel, supra, was properly raised in the trial court, it appears that the search of the area in this case was of an area within the immediate control of the defendant. We find no reversible error in either of the points raised and argued by defendant on this appeal.
The judgment of conviction is
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Chimel v. California, 395 U.S. 752 (U.S. 1969)
- Benefield v. State, 160 So. 2d 706 (Fla. 1964)
- Gustine v. State, 86 Fla. 24 (Fla. 1923)
- Griffin v. State, 474 So. 2d 777 (Fla. 1985)
- Melton v. State, 75 So. 2d 291 (Fla. 1954)
- Carter v. State, 155 So. 2d 787 (Fla. 1963)