HAROLD HESTOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harold Hestor was convicted of attempted tampering with a witness under Florida Statute 918.14, but the Fourth District Court of Appeal reversed and remanded, holding that attempted tampering with a witness is not a cognizable offense because the statute itself includes "endeavor or attempt" language, making attempt a built-in element of the substantive crime rather than a separate lesser-included offense.
Attempted tampering with a witness is not a cognizable crime. Because Section 918.14 expressly includes "endeavor or attempt to induce" a witness to testify falsely or withhold testimony as elements of the substantive crime itself, there is no separate crime of attempted tampering with a witness. The conviction must be reversed and the appellant discharged.
[1] A crime that by its statutory definition includes an "attempt" does not support a separate charge for attempted commission of that crime.
[2] An instruction on attempted commission of an offense is only appropriate if the attempt itself constitutes a distinct crime.
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Join FLexlaw to unlock all legal intelligence“since the elements of the crime itself include an attempt, there is no separate crime of attempted tampering with a witness”
The core holding that the statute's inclusion of 'endeavor or attempt' language means attempt is not a separate lesser-included offense
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Join FLexlaw to unlock all legal intelligenceHestor was tried and convicted of attempted tampering with a witness under Section 918.14, Florida Statutes (1975). At the charge conference after evi…
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DOWNEY, Chief Judge.
Appellant was tried on a charge of tampering with a witness in violation of Section 918.14, Florida Statutes (1975), and convicted of attempted tampering with a witness.
Appellant contends that he was convicted of a non-existent crime — attempted tampering with a witness — and we agree. The statute under which appellant was charged is Section 918.14, Florida Statutes (1975), “918.14 Tampering with witnesses.'—
“(1) It is unlawful for any person, knowing that a criminal trial, an official proceeding, or an investigation by a duly constituted prosecuting authority, a law enforcement agency, a grand jury or legislative committee, or the Judicial Qualifications Commission of this state is pending, or knowing that such is about to be instituted, to endeavor or attempt to induce or otherwise cause a witness to:
“(a) Testify or inform falsely; or
“(b) Withhold any testimony, information, document, or thing.
“(2) If any person violates the provisions of this section by the use of force, deception, threat or offer of pecuniary benefit to induce any conduct described in subsection (1), the violation shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
“(3)(a) It is unlawful for any person:
“1. To cause a witness to be placed in fear by force or threats of force;
“2. To make an assault upon any witness or informant; or
“3. To harm a witness by any unlawful act in retaliation against the said witness for anything lawfully done in the capacity of witness or informant.
“(b) Any person violating the provisions of this subsection shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
At the charge conference after the close of the evidence some confusion seemed to exist among the court and counsel as to the applicability of any lesser included offenses and whether an attempt charge was appropriate. The State takes the position on this appeal that appellant invited the charge on attempted tampering with a witness which the court gave, but we do not agree. The rule requiring an instruction on attempts provides that the court shall charge the jury on attempts to commit the offense charged if such attempt1 is an offense.2 Here the substantive crime described in Section 918.14, Florida Statutes (1975), includes by its express terms any “endeavor or attempt to induce” one to testify falsely, etc. Thus, since the elements of the crime itself include an attempt, there is no separate crime of attempted tampering with a witness. In view of the foregoing we reverse the judgment appealed from and remand the cause to the trial court with directions to discharge the appellant. 1
REVERSED AND REMANDED with directions to discharge.
ANSTEAD and LETTS, JJ., concur. . Fla.R.Crim.P. 3.510.
. Other cases in which it has been held that there is no such crime as attempt to commit the substantive crime charged: Bush v. State, 359 So. 2d 556 (4th DCA 1978) (attempted accessory after the fact); Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976), approved 340 So. 2d 928 (Fla.1976) (attempted making a false report of a crime); King v. State, 317 So. 2d 852 (Fla. 1st DCA 1975), aff'd 339 So. 2d 172 (Fla. 1976) (attempt to utter a forgery). See also Robinson v. State, 338 So. 2d 1309 (Fla. 4th DCA 1976).
Cases With Similar Vibessemantic neighbors from the corpus
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Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)…f legislature to provide that third-degree burglary and attempted third-degree burglary be punished as third-degree felonies). See also Milazzo v. State, 377 So. 2d 1161 (Fla.1979); Miles v. State, 374 So. 2d 1167 (Fla.2d DCA 1979); Hestor v. State, 363 So. 2d 26 (Fla. 4th DCA 1978) (addressing other statutes which proscribe both the completed crime and the attempt, and holding that since there cannot legally be an attempt to attempt, no instruction under the general attempt statute is required). . In other…
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Brown v. State, 550 So. 2d 142 (Fla. 1st DCA 1989)…o. 2d 30 (Fla.1982) (no crime of attempted extortion); Adams v. Murphy, 394 So. 2d 411 (Fla.1981) (no crime of attempted perjury); King v. State, 339 So. 2d 172 (Fla.1976) (there is no crime of attempt to utter a forged instrument); Hestor v. State, 363 So. 2d 26 (Fla. 4th DCA 1978) (no crime of attempted tampering with a witness); Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975) (no crime of attempted conspiracy). The state did not articulate at trial or in its brief the reasoning behind its request…
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Carruthers v. State, 636 So. 2d 853 (Fla. 1st DCA 1994)…t to instruct the jury on an attempt to commit the crime as a separate offense. See Brown v. State, 550 So. 2d 142 (Fla. 1st DCA 1989); Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981), rev. denied, 408 So. 2d 1095 (Fla.1981); Hestor v. State, 363 So. 2d 26 (Fla. 4th DCA 1978). Here, however, the absence of such language permits an application of section 777.04; therefore, an attempt instruction could have been given. In Sipp, the court points out that the crime of attempted sale of a counterfeit cont…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976)
- King v. State, 339 So. 2d 172 (Fla. 1976)
- State v. Silvestri, 340 So. 2d 928 (Fla. 1976)
- King v. State, 317 So. 2d 852 (Fla. 1st DCA 1975)
- Robinson v. State, 338 So. 2d 1309 (Fla. 4th DCA 1976)
- Bush v. State, 359 So. 2d 556 (Fla. 4th DCA 1978)