418 So. 2d 1221

STATE of Florida, Appellant, v. George Bunyan BUTLER, Appellee.

No. 82-177.

District Court of Appeal of Florida, Second District.

Sept. 3, 1982.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.

A. R. Mander, III of Greenfelder & Man-der, P.A., Dade City, for appellee.

PER CURIAM.

The state appeals from an order granting the appellee’s motion to dismiss an information alleging, inter alia, two counts of tampering with a witness, section 918.14(1), Florida Statutes (1979). We reverse.

A review of the counts of the information in question,1 indicates that the state basically tracked the statutory language of section 918.14(1).2 This practice has been *1222generally upheld as affording an accused his constitutionally mandated right to be properly informed of the charges against him. State v. Dilworth, 397 So.2d 292 (Fla. 1981). However, it is clear that an information is defective if it does not allege that all acts which constitute the elements of a crime were committed by the defendant. Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013 (1937).

The order granting the appellee’s motion to dismiss specifically cited Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981). In Gray, the court construed an information tracking the statutory language of section 918.14(3)(a)1, Florida Statutes (1979). Section 918.14(3)(a)1 is a companion section to section 918.14(1). First, the Gray court was concerned that the information failed to allege that the witness that was allegedly influenced was a witness “in some trial, proceeding or investigation . . . pending or to be instituted in some [specifically described official governmental] forum or tribunal.” The Gray court did indicate, however, that “a list of forums or tribunals is made a part of . . . section 918.14(1). . . . ” The result is that tracking the statutory language of section 918.14(1) in drafting an information would, in fact, supply this necessary allegation. Importantly, the information under scrutiny here specifically stated that the appellee/defendant knew an investigation was proceeding in one of the alternatively listed forums and tribunals specifically included in section 918.14(1).

The appellee/defendant contends that the information did not specifically allege scien-ter. Scienter here would be knowledge that the “witness” was to be a witness in one of the aforementioned forums. Furthermore, the appellee/defendant argued that the information did not specifically allege intent to cause such witness to withhold testimony or to testify falsely. However, the information did allege that, knowing that an investigation was under way in one of the aforementioned tribunals or forums, the appellee/defendant “did endeavor ... to induce or otherwise cause a witness ... to testify or inform falsely or withhold any testimony.” The American Heritage Dictionary defines endeavor as “a conscientious or concerted effort toward a given end.” [Emphasis added.] American Heritage Dictionary 431 (New College Ed. 1981). It goes without saying that one who makes a conscientious effort toward an end has the requisite knowledge of the circumstances (scienter) and an intent to achieve that end.

In addition to expressing the elements of the crime, an information must express such elements in a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy. State v. Dilworth. Here, additional facts supplemented the information. The information named the witnesses alleged to be tampered with. Furthermore, the information indicated what the appellee/defendant was attempting to cause said witnesses to do: “should not talk to anyone and should state that said witness had not seen anything.” Thus, the information in this case was sufficient to meet the above-mentioned standards.

Accordingly, this case is reversed and remanded for further proceedings consistent with this opinion.

GRIMES, A.C.J., and SCHEB and SCHOONOVER, JJ., concur.

State v. Butler
418 So. 2d 1221

Case Details

Name
State v. Butler
Decision Date
Sep 3, 1982
Citations

418 So. 2d 1221

Jurisdiction
Florida

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