Spadaro v. State 332 So. 2d 110

SMITH, Judge.

Spadaro asserts that his felony convictions as a recidivist beverage law violator, § 562.45(1), F.S., were vitiated by an insufficient verdict and by the trial court’s action in resubmitting the case for a proper verdict after the jury had been excused from service.

Spadaro was charged in three counts with felony violations of the beverage laws, ch. 562, F.S. Count one alleged that he had previously been convicted of beverage law violations and that on January 26, 1975, he possessed alcoholic beverages with intent to sell without a license. Count two alleged his previous convictions and that he unlawfully maintained a place where alcoholic beverages were sold without a license. Count three alleged his prior convictions and that on February 1, 1975, he again possessed alcoholic beverages with intent to sell without a license.

Trial was had and a jury verdict was returned in the following form: “We, the Jury, find the defendant, Fred V. Spadaro, guilty as charged under the first, second, and third counts of the amended Information. So say we all.” After receiving the verdict the trial judge addressed the jury: “You are excused now from further jury service and we do appreciate your being with us this week. Report where you came in Monday morning across the hall and the Clerk will pay you for being with us this week. Thank you again. Court is adjourned.”

Immediately after the jurors left the courtroom, appellant’s attorney moved for a judgment of acquittal and to arrest the judgment on the ground, among others, that the verdict was insufficient to support a felony judgment and sentence in that it failed to find explicitly that appellant had previously been convicted of beverage law violations. The court, after admonishing appellant’s lawyer,1 recalled the jury, which had not dispursed from the courthouse, and resubmitted the case with a new verdict form which recited Spadaro’s guilt of the current charges and separately found that he had previously been convicted of beverage law violations. The jury returned its verdict on that form and the trial court adjudicated Spadaro guilty on all three counts and sentenced him to felony terms on two of them. Sec. 562.45, F.S.

Our Supreme Court has held a general verdict of guilty as charged is insufficient to convict a recidivist under the felony provisions of § 562.45, F.S., even when the information charges, as it does here, that the accused was previously convicted for violating beverage laws. State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228 (1924); Barnhill v. State, 41 So.2d 329, 331, 332 (Fla.1949). The rationale of those decisions is that the prior conviction is not an element of the more recent offense, itself a misdemeanor, and that the private conviction must be separately found by the jury. But the same authorities hold also, as consistency would require, that the jury should be charged both on the elements of the misdemeanor and on the separate issue of prior conviction, and that the jury should be instructed to find by its verdict, if there is a conviction, whether the accused was previously convicted.

Spadaro’s counsel not only acquiesced in but affirmatively induced the trial court’s error for which he seeks reversal. It was not simply that Spadaro’s counsel did not volunteer an objection to the form of verdict submitted to the jury. The error in the verdict was foredoomed by the court’s erroneous jury charge that Spadaro’s pre*112vious conviction of a Florida beverage law violation was one of the essential elements of the offenses charged in the information. The jury’s irregular verdict was entirely responsive to those instructions. And it was Spadaro’s counsel who requested that the jury be so charged.

Spadaro is in no position to complain of a felony verdict which was dispositive of the issues tried and consistent with instructions erroneously given at his request. Bianchi v. State, 272 So.2d 8 (Fla.App.3d, 1973); Castle v. State, 305 So.2d 794 (Fla.App.4th, 1975), cert. den. 317 So.2d 766. We therefore do not reach the question of whether the jury, which had not dispersed from the courthouse, could be recalled to consider a corrected form of verdict. None of Spadaro’s other points require reversal.

AFFIRMED.

MILLS, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

In Barnhill, supra, the Supreme Court quoted with approval the rule stated in Coulson v. State, 110 Fla. 281, 149 So. 522 (1933), viz:

“. . . ‘In the present case the verdict of the jury did not expressly determine separately, as we have held must be done, the historical fact of the defendant’s former conviction as alleged. Benson v. State, 88 Fla. 103, 101 So. 231. A verdict of “guilty” in a case like this, where more severe penalties for a second or third offense are invoked, is not regarded as responsive to the allegations of the indictment charging a given criminal act as constituting a second offense in order to lay the predicate for an increased penalty on conviction. State ex rel. Lockmiller v. Mayo, supra [101 So. 228 (Fla.1924)]. Therefore such verdict should have been set aside on defendant’s motion and a new trial awarded. Reversed for a new trial.’ ”

and squarely held that a verdict such as the instant one must be set aside. The state contends, first, that since Spadaro did not object to the form of the verdict prior to the jury’s initial release, he waived any objection as to form, citing this court’s opinion in Whilden v. State, 301 So.2d 35 (1 Fla.App.1974),1 and the Supreme Court’s opinion in State v. Jones, 204 So.2d 515 (Fla.1967). In Whilden, this court observed that defense counsel affirmatively stated that he had no objection to the form of the verdict and that the verdict was in such a form that a lesser included offense could be ascertained. Such construction cannot be applied here. Jones involved the question of alleged improper comments by the state attorney in his argument to the jury and likewise, is not applicable.

Washington v. State, 55 Fla. 194, 46 So. 417 (1908), is applicable.2 There, the court stated:

“. . . When the court comes to pronounce sentence, there ought to be no uncertainties about the offense of which the prisoner is guilty. Mr. Bishop says: ‘As already intimated, there ought never to be a defect in the verdict. If the jury bring in a defective verdict, it is in the power equally of the prisoner and the prosecuting attorney to have it set right; and, suppose the prisoner chooses not to interfere, and suffers a defective verdict to be entered, as his interest would always prompt him to do, in preference to a verdict of guilty in due form, he, by thus failing to interpose, waives his objection to be [sic] put a second time in jeopardy for the same offense [sic]. *113In all such cases, therefore, the verdict is simply set aside as a nullity, and new trial is ordered. The court cannot, instead of this, make the verdict, or the judgment, what it thinks it ought to be.’ 1 Bishop’s Cr.Proc. § 1016 [2 ed. (1872) at 631].”

The state’s position is that the “second” jury verdict cured any defects contained in the initial verdict. Such contention cannot withstand the long established and well-honored rule of law that upon discharge, the members of a jury lose their separate identity as a jury and can be affected by extra-trial influences. State v. Smith, 183 So.2d 34 (2 Fla.App.1966), and Smith v. State, 330 So.2d 59, Fla.App., Opinion filed April 13, 1976, not yet reported.

I would reverse with directions that a new trial be granted.