KENNETH KITTLESON
v.
STATE OF FLORIDA
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Kittleson challenges his arrest via habeas corpus, arguing that the information against him fails to charge any criminal offense. The Florida Supreme Court agrees, holding that the vague charges of lewdness lack sufficient specificity to inform the accused of what conduct constitutes the alleged crime.
The information is void because it charges no offense. The vague allegations do not advise the accused of what specific acts the State will rely upon for conviction, and an unsworn bill of particulars cannot supply the necessary allegations to constitute a criminal charge.
“Where an indictment or information entirely fails to charge a criminal offense the accused may test the sufficiency thereof in habeas corpus proceedings.”
Establishes the legal basis for challenging an information via habeas corpus when it fails to state a crime.
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Join FLexlaw to unlock all legal intelligenceKittleson was charged via amended information on January 9, 1942, with two counts: being a lewd, wanton, and lascivious person on October 23, 1941, an…
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On writ of error we review judgment in habeas corpus proceedings remanding the petitioner to the custody of respondent.
Where an indictment or information entirely fails to charge a criminal offense the accused may test the sufficiency thereof in habeas corpus proceedings. See Skipper v. Schumacher, 124 Fla. 384,169 So. 58; State ex rel. v. Coleman, 131 Fla. 892; 180 So. 357; Jones v. Cook, 146 Fla. 253, 200 So. 856; Sec. 140 Florida Criminal Procedure- Act.
The information in this case appears as follows:
"In the Criminal Court of Record, Hillsborough County, State of Florida.
“Joseph E. Williams,, County Solicitor for the County of Hillsborough, prosecuting for the State of Florida, being present in said court on the 9th day of January, A. D. 1942, for an amended information in this case, charges that:
First Count:
“Kenneth Kittleson, on the 23rd day of October, A. D. 1941, in said County and State, was a lewd, wanton and lascivious person;
*244Second Count:
“Kenneth Kittleson on the 23rd day of October, A. D. 1941, in said County and State, was guilty of open and gross lewdness and lascivious behavior.
County Solicitor for the County of Hillsborough, State of Florida.
“(Bill of particulars attached hereto and made a part hereof).
State of Florida
County of Hillsborough
“Personalty before me came Joseph E. Williams, County Solicitor for Hillsborough County, who being by me first duty sworn says that the allegations set forth in the foregoing amended information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense in said information charged.
“Subscribed and sworn to before me, this ...... day of January, A. D. 1942.
Clerk of the Criminal Court of Record, Hillsborough County, Florida.”
From the transcript of the record before us it does not appear that the information was either signed or verified under oath, but we assume it was, as no point is made in that regard.
To the information it appears that there was attached a paper referred to as a bill of particulars, which was not sworn to or verified. Its contents are too filthy to be quoted for publication. That document cannot be looked to as supplying the allegations necessary in the information to constitute a charge of a criminal offense. See Middleton v. State, 74 Fla. 234, 76 So. 785; Smith v. State, 93 Fla. 238, 112 So. 70.
The record indicates that it was attempted to charge in each count of the information a violation of the provisions *245of Sec. 798.02 or the provisions of Sec. 847.05 or the provisions of 800.03, Florida Statutes, 1941. These are kindred statutes dealing with lewd and lascivious conduct büt penalties thereunder are not identical. Some of the statutes, supra, do not attempt to define the acts or conduct which may constitute the offenses condemned and as the acts which would fall within the purview of the Acts may only be limited in number and manner of performance by the ingenuity of the combined depraved minds of the evil men and women of present and passed ages, a charge so indefinite as those now before us in nowise advises the accused of what act the State will rely upon for conviction. See 847.05, supra, as well as the other sections above cited are comparable to Sec. 847.04 Florida Statutes, 1941, and indictments and informations thereunder should be governed by the same legal principles and when such principles are applied to this information it must be held void because it charges no offense. See Reyes v. State, 34 Fla. 181, 15 So. 875; Vannoy v. State, 94 Fla. 1175, 115 So. 510. See also Dameron v. State, 8 Mo. 494; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135 and Newmann v. State, 116 Fla. 98, 156 So. 237.
As the information charges no offense, the judgment must be reversed and the cause remanded for further proceedings.
So ordered.
BROWN, C. J., WHITFIELD, and ADAMS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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The State of Fla. Ex rel. Kenneth Swanboro v. Mayo, 155 Fla. 330 (Fla. 1944)…es as this must be definitely alleged and averred to be lewd and lascivious thereby leaving the matter for judicial determination as to whether or not the act charged violates the statute. For the reasons stated, on authority of Kittleson v. State, 152 Fla. 242, 9 So. (2nd) 807, and cases there cited, we must hold that the information charged no offense under the laws of the State of Florida and, therefore, petitioner is now ordered discharged from custody. TERRELL, BROWN, CHAPMAN, THOMAS, ADAMS and SEBRI…
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State v. Beasley, 317 So. 2d 750 (Fla. 1975)…ts are not sufficiently before us. The information as drawn is clearly inadequate. See Rules of Criminal Procedure 3.140(b) and 3.-140(d)(1), and Florida Criminal Rules and Practice at 53 (The Florida Bar CLE 1974); Kittleson v. State, 152 Fla. 242, 9 So. 2d 807 (1942); Rosin v. Anderson, 155 Fla. 673, 21 So. 2d 143 (1945); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). We reverse the holding of the trial judge that the statute is facially unconsti [*754] tutional. We affirm t…
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Kelly v. The State of Fla. ex rel. Frank K. Leonard & R. R. Russell, 92 So. 2d 172 (Fla. 1956)…nformation to which it is attached. In considering the sufficiency of the information it was improper for the circuit court to consider the contract as a part thereof. Middleton v. State, 74 Fla. 234, 76 So. 785 and Kittleson v. State, 152 Fla. 242, 9 So. 2d 807. In arriving at an answer to the second question, as stated above, an examination of the purpose of the writ of habeas corpus reveals that its primary object is to determine the legality of the restraint under which a person is held and is not to d…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Carll, 105 U.S. 611 (U.S. 1881)
- Skipper v. Doyle Schumacher, 124 Fla. 384 (Fla. 1936)
- Middleton v. State, 74 Fla. 234 (Fla. 1917)
- Neumann v. State, 116 Fla. 98 (Fla. 1934)
- Atl. Coast Line R.R. Co. v. Fla. Fine Fruit Co., 93 Fla. 171 (Fla. 1927)
- Smith v. State, 93 Fla. 238 (Fla. 1927)
- Reyes v. State, 34 Fla. 181 (Fla. 1894)
- State v. Coleman, 131 Fla. 892 (Fla. 1938)
- Jones v. Cook, 146 Fla. 253 (Fla. 1941)
- Vannoy v. State, 94 Fla. 1175 (Fla. 1928)