ISAAC NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nelson was charged with felonies related to promoting a lottery by possessing and selling lottery tickets but was convicted of the lesser included misdemeanors. The Florida Supreme Court held that felony lottery offenses can encompass lesser misdemeanor conduct as included offenses within a single criminal transaction, permitting a conviction for the lesser crime.
The court held that felony lottery offenses can include lesser misdemeanor conduct when a single person concentrates the facets of those activities. The felony of promoting a lottery by possessing tickets encompasses the misdemeanor of possessing tickets, and the felony of connection with a lottery by selling chances encompasses the misdemeanor of selling chances.
“the promotion of the lottery, under, paragraph (1) (a) of Sec. 849.09, supra, includes the element of possession of tickets, and an interest in a lottery or connection with a lottery under paragraph (1) (d) of Sec. 849.09, supra, includes the business of selling chances on the lottery”
Establishes that felony lottery offenses inherently include the elements of the lesser misdemeanor conduct
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Join FLexlaw to unlock all legal intelligenceNelson pleaded not guilty to two counts of an information charging lottery violations. He was charged with promoting a lottery (bolita) by possessing …
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THOMAS, Justice.
The appellant pleaded not guilty to two counts of an information charging violations of the law denouncing lotteries, was found guilty of offenses lesser than the ones charged, and was sentenced to s.erve one year at hard labor in the county jail.
The prosecution was instituted in the circuit court and in both counts -of the information the appellant was charged with the commission of felonies. In the first he was alleged to have aided and assisted in promoting - a lottery known as Cuba or bolita “by having in his possession lottery tickets” and so on, and in the second he was alleged to have been connected with such a lottery by “selling * * * chances” and so forth.
Although the charges were promotion of a lottery and connection with a lottery in the manner quoted, the jury found the appellant guilty only of “possession * * * as included in the first count” and “selling * * * chances * * * as included in the second count.”
The appellant now questions the legality of the judgment because he was prosecuted for felonies and was adjudged guilty of misdemeanors. He asks whether the offenses, misdemeanors and felonies, de fined in Chapter 26765, Laws of Florida, Acts of 1951, Sec. 849.09, Florida Statutes 1953, and F.S.A., can be one substantive offense, where there is one criminal transaction, so that the misdemeanors may be of lesser degree and the felonies of higher degree, as in the case of homicide, or are all of them substantive offenses.
We think that when, as in this case, a person is charged with the felonies of promoting a lottery by possessing tickets and at the same time being interested in a lottery by engaging in the sale of tickets, the promotion of the lottery, under, paragraph (1) (a) of Sec. 849.09, supra, includes the element of possession of tickets, and an interest in a lottery or connection with a lottery under paragraph (1) (d) of Sec. 849.09, supra, includes the business of selling chances on the lottery. In one instance the possession of tickets is but a facet of the promotion, and in the other, the sale of tickets is but a facet of a connection with the lottery or an interest in the lottery, Wheeler v. State, Fla., 72 So. 2d 364.
Although the lesser activities may be distributed among many persons so that each might be guilty only of a misdemean-or, if the facets are concentrated in one person, he may be guilty of a felony.
Therefore, we conclude that when the appellant was charged with the felony of assisting in the conducting of a lottery by possessing tickets, the felony of promoting the lottery embraced the misdemeanor of possessing the tickets; and that when he was charged with having an interest in a lottery or connection with a lottery “in that he did engage in the business of selling * *' * chances” the felony of connection and interest included the misdemeanor of selling chances. In such case the jury was warranted in finding the appellant guilty of tire lesser violations.
Affirmed.
DREW, ' C. J., and ROBERTS and O’CONNELL, JJ., concur.
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State v. Anderson, 270 So. 2d 353 (Fla. 1972)…he proof at trial supports the charge. The gist is not what the defendant would like to persuade a jury he may be guilty of, but that the accusatory pleading apprise him of all offenses of which he may be convicted. For example, in Nelson v. State, 83 So. 2d 687 (Fla.1955), the defendant was charged with aiding and assisting in the promoting of a lottery by having in his possession lottery tickets and also, in another count, with aiding and assisting by selling. He was convicted of the misdemeanors of posse…
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Gaskins v. State, 89 So. 2d 867 (Fla. 1956)…ney’ and then goes further and alleges what he did by saying ‘in that he received, collected and transported money and records of the sale of chances on a lottery * * The count was sufficient to charge a felony.” ' ' See also Nelson v. State, Fla., 83 So. 2d 687. With reference to the legality of the search, which was attacked by the motion to suppress, the evidence showed that at 7:10 p. m., January 15, 1955, two Tampa police officers, while patrolling their zone, came upon a 1937 Model Dodge pickup truck…
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Holliday v. State, 104 So. 2d 137 (Fla. 1st DCA 1958)…of that subsection, rather than only paragraph (h) as the state contends. We hold that the verdict and adjudication of guilt was solely of the felony defined by said paragraph (d). We do not depart from the rule announced in Nelson v. State, Fla., 83 So. 2d 687, to the effect that one charged with a felony under F.S. Sec. 849.09, F.S.A. may [*141] be convicted of a misdemeanor embodied therein where the information by apt language alleges the commission of acts which constitute the misdemeanor. The cited c…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wheeler v. State, 72 So. 2d 364 (Fla. 1954)