JOHN LAWRENCE HONCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was insufficient as a matter of law to establish a conspiracy, and therefore the co-conspirator exception to the hearsay rule could not be invoked for the conviction.
[1] A statute is constitutional if it embraces but one subject and matters properly connected therewith.
[2] Infirmities or defects in the title of a reenacted statute are cured by the reenactment.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of conspiracy, extortion, and impersonating a police officer. The conviction relied heavily on the co-conspirator exception to…
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This cause is before us on direct appeal from the Criminal Court of Record of Palm Beach County, Florida. Appellant was charged and convicted of conspiracy, extortion and impersonating a police officer. Our jurisdiction was established when the trial judge specifically ruled that the extortion statute in question, Fla.Stat. § 836.05, F.S.A., was constitutional. Fla. Const, art. V, § 4(2),,F.S.A.
Appellant challenged the statute on the ground that it violates the provisions of Fla.Const. art. Ill, § 6 (1968), which requires that: “Every law shall embrace but one subject and matter properly connected therewith. . . Upon consideration we find that the statute does not contain more than one subject and meets the constitutional test. Any defect in its original enactment in 1868 was removed by subsequent reenactments of this statute, by virtue of the long line of Florida cases holding that infirmities or defects in the title of a reenacted statute are cured by the reenactment. Rodriguez v. Jones, 64 So.2d 278 (Fla.1953); Owen v. Cheney, 238 So.2d 650 (2nd DCA Fla.1970); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958).
We now turn to the only other point raised by appellant which has any real merit. Appellant contends that all of the evidence admitted against him was admitted under the “co-conspirator exception to the hearsay rule.” As such, he maintains, (1) the requirements for the admission of such evidence under that rule were not met, and (2) that, in fact, no conspiracy was proved as charged in the information.
Every act and declaration of each member of a conspiracy is the act and declaration of them all, and is therefore original evidence against each of them. Mercer v. State, 40 Fla. 216, 24 So. 154 (1898); Roberson v. State, 40 Fla. 509, 24 So. 474 (1898); Farnell v. State, 214 So.2d 753 (2nd DCA Fla.1968). However, before the “co-conspirator rule” may be'invoked there must first be independent evidence of the existence of a conspiracy, and of the objecting party’s participation in it.1 In other words, proof of a conspiracy is necessary for the purpose of establishing the criminal liability of the conspirators for the unlawful acts of their co-conspirators in furtherance of the common cause. See Duke v. State, 134 Fla. 456, 185 So. 422 (1938); Rogers v. United States, 334 F.2d 83 (5th Cir. 1964), cert. denied, Levine v. United States, 380 U.S. 915, 85 S.Ct. 892, 13 L.Ed.2d 800; 6 Fla.Jur. Conspiracy §§ 17 and 18. See also Brown v. State, 128 Fla. 762, 175 So. 515 (1937), where this Court restated:
“ . . . the usual rule that upon the trial of an indictment for a substantive offense, evidence is admissible to prove a conspiracy to commit the substantive crime charged in the indictment (although no conspiracy is charged in such indictment) on the theory that the principal crime charged may itself be established by first proving the formation and execution of a pre-existing conspiracy out of which its accomplishment was realized in the completion of the substantive offense.”
*891Turning to the case at bar we find that the evidence tending to show that appellant was a co-conspirator was insufficient as a matter of law to invoke the “co-conspirator rule,” or to convict the appellant as charged in the information. We have thoroughly examined the volumes of testimony, the complete record and the allegations in the state’s brief, but we are unable to find sufficient evidence to support the state’s position. While we are convinced that the state proved an extortion was committed by someone, the only evidence in this case tending to show appellant’s participation in the conspiracy to commit extortion is the following:
1. Greever (the other alleged co-conspirator) had somebody as an accomplice.
2. Appellant drove Greever in his car to the place where Greever met the victim, and later drove to another building nearby for Greever.
3. Appellant was twice seen in the hotel where Greever originally approached the victim and where Greever at first had planned the final payoff.
4. Appellant showed an interest in getting revenge on the arresting officer.
This evidence at most establishes appellant’s physical presence in the general area during Greever’s attempt to commit the crime. This is insufficient as a matter of law to establish the conspiracy necessary for appellant’s conviction herein.
The trial court erred in denying appellant’s motion for acquittal. Accordingly, the conviction below should be and the same is hereby reversed.
It is so ordered.
ERVIN, CARLTON and McCAIN, JJ„ concur.
ROBERTS, C. J., and ADKINS and BOYD, JJ., dissent.
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Cited By (31 total)
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Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)…independent evidence that both the declarant and the objecting party were members of the conspiracy. See Saavedra v. State, 421 So. 2d 725, 727 (Fla. 4th DCA 1982); Tresvant v. State, 396 So. 2d 733, 736-37 (Fla. 3d DCA 1981); and Honchell v. State, 257 So. 2d 889, 890 (Fla.1971). In the instant case, independent evidence that Huhn participated in a conspiracy for the commission of the earlier drug trafficking offenses was not provided. Hence, Bis-cardi’s statement to Fióla that Huhn was implicated in those…
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Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988)…e, 504 So. 2d 780, 782 (Fla. 3d DCA 1987) (quoting Ramirez v. State, 371 So. 2d 1063 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1201 (Fla.1980)). Although mere presence is insufficient to establish participation in a conspiracy, Honchell v. State, 257 So. 2d 889 (Fla.1971); Ashenoff v. State, 391 So. 2d 289 (Fla. 3d DCA 1980), and a conspiracy may not be inferred from mere aiding and abetting, Velunza, 504 So. 2d at 782, presence is a factor the jury may consider in determining guilt. See United States v. C…
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Tresvant v. State, 396 So. 2d 733 (Fla. 3d DCA 1981)…ee also Brik-lod v. State, 365 So. 2d 1023 (Fla.1978). The admissibility of these statements depends, instead, on the rule of evidence which excepts such statements from the general rule which makes hearsay inadmissible.5 Hon- [*737] chell v. State, 257 So. 2d 889 (Fla.1972); Boyd v. State, supra. Thus, whether or not a conspiracy is charged, the threshold condition of admissibility of a co-conspirator’s hearsay statement — proof independent of the statement that the defendant against whom the statement is so…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Roberson v. State, 40 Fla. 509 (Fla. 1898)
- Mercer v. State, 40 Fla. 216 (Fla. 1898)
- Spangler v. Fla. State Tpk. Auth., 106 So. 2d 421 (Fla. 1958)
- Duke v. State, 134 Fla. 456 (Fla. 1938)
- Postal Tel. & Cable Co. v. Bart Doyle, 128 Fla. 707 (Fla. 1937)
- Farnell v. State, 214 So. 2d 753 (Fla. 2d DCA 1968)
- Rodriguez v. Jones, 64 So. 2d 278 (Fla. 1953)
- Kight v. Am. Eagle Fire Ins. Co. of N.Y., 125 Fla. 608 (Fla. 1936)
- Buck Hall v. State, 31 Fla. 176 (Fla. 1893)
- Owen v. Cheney, 238 So. 2d 650 (Fla. 2d DCA 1970)