The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Herbert N. Price v. State of Florida
SC06-2045
ALL RISE.
HEAR YEA HEAR YEA, THE FLORIDA
SUPREME COURT IS NOW IN
SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NIGH,
GIVE ATTENTION AND YE SHALL BE
HEARD.
GOD SAVE THE UNITED STATES, THE
GREAT STATE OF FLORIDA AND THIS
HONORABLE COURT.,,
>> GOOD MORNING.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS,
WELCOME TO THE FLORIDA SUPREME
COURT.
AND THE ORAL ARGUMENT CALENDAR
FOR MONDAY, DECEMBER 3rd, THE
FIRST CASE ON THE CALENDAR IS
PRICE VERSUS STATE OF FLORIDA.
MS. MELROSE, MS. ADKINS, READY
TO PROCEED?
>> MR. CHIEF JUSTICE, MAY IT
PLEASE THE COURT.
MY NAME IS MARY ADD -- ADKINS
FROM MELROSE FLORIDA AND A
REPRESENT THE PETITIONER,
HERBERT PRICE, THE COURT SHOULD
GRANT HIM A EVIDENTIARY HEARING
ON HIS HEARING FOR HABEAS
CORPUS FOR TWO REASONS.
FIRST, BECAUSE THE CHARGING
INFORMATION WAS SO VAGUE,
INDISTINCT AND INDEFINITE IT
COMPLETELY FAILED TO CHARGE AN
ESSENTIAL ELEMENT OF THE
OFFENSE.
AND THUS VIOLATED HIS DUE
PROCESS RIGHTS.
SERXD EVEN IF THIS COURT WERE
TO FIND MR. PRICE SHOULD HAVE
RAISED THE ISSUE ON APPEAL,
THEY IMPROPERLY DISMISSED HIS
DIRECT APPEAL WITHOUT FIRST
CONDUCTING AN ANDERS REVIEW.
>> LET ME ASK YOU THIS.
THERE IS, UNDER THE RULES, YOU
CAN IN FACT FILE A MOTION, A --
CHALLENGING THE SUFFICIENCY OF
AN INFORMATION.
AND WHAT -- WAS THAT DONE IN
THIS PARTICULAR CASE.
>> A MOTION DURING THE TRIAL,
YOUR HONOR.
>> PRIOR TO TRIAL.
IF YOU SAY IT WAS SO FLAWED
THAT IT FAILED TO CHARGE AN
OFFENSE, SO IF IT WAS THAT
FLAWED, WHY WASN'T THERE A
MOTION TO DISMISS THE
INFORMATION FILED PRIOR TO
TRIAL?
>> YOUR HONOR, YOU ARE CORRECT,
THERE WAS -- IT WAS NEVER
RAISED BEFORE THE PETITION FOR
HABEAS CORPUS AND THIS COURT
SAID IN STATE VERSUS GREG, THAT
WHEN AN INFORMATION IS SO
FLAWED, THAT IT FAILS TO ALLEGE
AN ELEMENT OF DEFENSE IT CAN BE
RAISED AT ANY TIME, PRETRIAL,
POST-TRIAL, ON APPEAL OR HABEAS
CORPUS.
>> WELL, YOU --
>> GO ON.
>> YOUR CONTENTIOUS IS NOT THAT
THIS WHOLLY OMITTED TO ALLEGE A
CRIME.
AS IN GRAY, I MEAN, THAT WAS --
THIS IS NOT GRAY.
CORRECT?
>> CORRECT.
IN GRAY, IT WAS ABSENT.
IN MR. PRICE'S CASE, THE
ELEMENT WAS NOT ABSENT.
IT WAS COMPLETELY GARBLED.
AND IN A CIRCUMSTANCE LIKE THAT,
THE STANDARD -- IF IT IS SO
VAGUE, INDISTINCT AND
INDEFINITE THAT A DEFENDANT
CAN'T FIGURE OUT WHAT IS BEING
CHARGED --
>> BUT IT SEEMS TO ME THAT
THERE IS A MATERIAL DIFFERENCE
BETWEEN A SITUATION IN WHICH
THE INDICTMENT JUST DOESN'T
ALLEGE A CRIME.
AND THAT IS PLENTY.
AND, A SITUATION IN WHICH THERE
IS SOME VAGUENESS WOULD YOU
ABOUT WHAT IS SET FORWARD THAT
IT COULD BE CLEARED UP IF THERE
IS A REAL UNCERTAINTY BY FILING
A MOTION AND THAT IS WHERE THE
LAW SHOULD BE.
>> YOUR HONOR, THERE IS A
DISTINCTION AND THE DISTINCTION
-- BLESS YOU.
>> THANK YOU.
>> THE DISTINCTION, YOUR HONOR,
IS BETWEEN A CHARGING
INSTRUMENT WHICH IS MERELY
IMPRECISE OR FLAWED AND A
CHARGING INSTRUMENT WHICH IS SO
VAGUE AND INDISTINCT AND
INDEFINITE THAT THE RESULT IS
IT FAILS TO ALLEGE AN ELEMENT
OF THE DEFENSE.
IN THIS CASE THE CHARGING
INSTRUMENT READ IN THAT HERBERT
PRICE ON OR ABOUT MAY 7th, 2001,
IN THE COUNTY OF VOLUSIA, STATE
OF FLORIDA, DID UNLAWFUL FULLY
COMMIT SEXUAL BATTERY BY...
ORAL AND/OR VAGINAL PENETRATION,
NOT THE WORD "PENETRATION" BY
OR IN UNIT WITH SEXUAL ORGAN OF
A VICTIM, A PERSON 12 YEARS OF
AGE OR OLDER WITHOUT CONSENTED
AND WHEN THE VICTIM WAS
PHYSICALLY INCAPACITATED.
>> DID THAT TRACK THE STATUTORY
LANGUAGE?
>> IT DID AND -- IN A BACKWARD
WAY.
I CAN READ YOUR HONOR THE
STATUTE AND WE CAN POINT OUT
HOW IT IS DIFFERENT.
>> AND YOU -- AND YOU LEFT OUT
A PORTION OF THE INFORMATION,
DID YOU NOT, IN THE END OF THE
-- CONTRARY TO A VERY SPECIFIC
SECTION OF THE FLORIDA STATUTES,
IS THAT CORRECT.
>> YES, YOUR HONOR, IT DOES NOT
TRACK BUT REFERS TO THE -- WHAT
THIS CHARGING INFORMATION DOES
IS IT OMITS -- A PERPETRATOR
AND DESCRIBES THE OFFENSE
BACKWARD IN SUCH A WAY IT IS
IMPOSSIBLE TO TELL WHO DID WHAT
TO WHOM WITH WHAT.
SO PERHAPS THE BEST WAY TO
ILLUSTRATE THIS IS TO READ THE
STATUTE AND THEN READ THE
INFORMATION.
THE STATUTE MAKES SENSE.
THE STATUTE SAYS, SEXUAL
BATTERY MEANS ORAL, AGE OR
VAGINAL.
PENETRATION BY, OR UNION WITH
THE SEXUAL ORGAN OF ANOTHER, OR,
THE ANAL OR VAGINAL PENETRATION
OF ANOTHER BY ANY OTHER
OBJECTS.
AND HAS AN EXCEPTION WHICH IS
THAT MEDICAL PURPOSES DON'T
COUNT.
NOW, THE STATUTE MAKES SENSE
BECAUSE IT IS TALKING ABOUT THE
ACT IN GENERAL.
A CHARGING INFORMATION NEEDS TO
TELL WHO PERFORMED THE FACT.
THIS CHARGING INFORMATION SAYS\\""$$
SAYS... COMMITTED SEXUAL
BATTERY BY... ORAL AND/OR
VAGINAL PENETRATION BY... OR
UNION WITH THE SEXUAL ORGAN OF
THE VICTIM.
NOW, THERE IS AN "OR" THERE,
CORRECT?
PENETRATION BY OR UNION WITH.
NOW, EITHER ONE OF THOSE, I'LL
GET IN A MOMENT, WHY THERE
SHOULDN'T BE AN "OR" THERE BUT
IF WE WERE TO CONSTRUCT THE
SENTENCE SO WAY IT IS WRITTEN,
IF WE TOOK ONE OF THE WORDS
FROM THE SIDE OF THE "OR" AND
SAID, COMMITTED SEXUAL BATTERY
BY... ORAL, AND/OR VAGINAL PREN
TRATION AND NOT TALKING ABOUT
THAT "OR" PENETRATION BY THE
SEXUAL ORGAN OF THE VICTIM?
>> LET ME SAY, SO ITS YOUR
POSITION THAT WHEN YOU AS THE
DEFENSE COUNSEL ARE -- OR THE
DEFENDANT LOOK AT THE DOCUMENT
HE WOULDN'T KNOW WHAT HE WAS
CHARGED WITH?
>> YOUR HONOR, WE CAN'T KNOW
THAT, BECAUSE HE WAS NEVER
GIVEN AN EVIDENTIARY HEARING.
TO DETERMINE IT.
>> JUST ON THE FACE YOUR
ARGUMENT TH IS THIS INFORMATION
IS SO FACELY DEFECTIVE THE
DEFENDANT HAD NO IDEA WHAT THE
STATE WAS CHARGING HIM WITH?
THERE WAS --
>> NO REASONABLE IDEA.
>> THERE WAS SOME SEXUAL THING
CHARGED.
THE KEY WORDS ARE THERE.
YOU KNOW, BODY PARTS ARE
MENTIONED.
PENETRATION IS INARTFULLY
MENTIONED.
IT IS ACTUALLY MISSPELLED.
>> LET ME TRY AND PUT IT IN --
IN COULD CONTEXT, WHEN HE WAS
ARRESTED DID THE WARRANT HAVE
THE INFORMATION THAT IT WAS BY
THE PENIS?
THE PENETRATION.
>> THE WARRANT, YOUR HONOR, I'M
NOT SURE BUT THE CHARGING
INFORMATION DOESN'T SAY --
>> I GUESS WHAT I'M TRYING TO
DO IS TRYING TO FIGURE OUT IF
YOUR ARGUMENT IT IS SO VAGUE
AND INDISTINCT THAT AT THIS
POINT BEFORE US NOW WE DON'T
KNOW WHAT IS CHARGED, THAT
WOULDN'T THAT BE SIMPLY JUST AS
OBVIOUS AT THE TIME OF THE
ARRAIGNMENT, AT THE TIME OF THE
TRIAL, AT THE TIME OF THE
OPENING ARGUMENT, AT THE TIME
THE EVIDENCE WAS PRESENTED, AT
THE TIME OF CLOSING ARGUMENT,
POST-TRIAL OR DIRECT APPEAL.
>> YOUR HONOR, AGAIN, WITHOUT
THE EVIDENTIARY HEARING
MR. PRICE WAS DENIED WE CAN'T
KNOW WHETHER THERE WAS ACTUAL
PREJUDICE.
WHAT IS --
>> SO YOUR POSITION IS ARGUE!!ING
BASED ON GRAY.
I AGREE THE LANGUAGE IN GRAY IS
BROAD IS ALL HAPPENS TO BE
FILED IS A BLANKET HABEAS
SAYING THE INFORMATION IS
DEFECTIVE AND ONCE THAT IS
DON'T YOU REQUIRE AN
EVIDENTIARY HEARING NO MATTER
WHERE IT IS IN THE PROCESS.
>> YOUR HONOR, A PETITION CAN'T
JUST SAY THE CHARGING
INFORMATION IS DEFECTIVE.
THE CHARGING INFORMATION HAS TO
BE DEFECTIVE AND THIS CHARGING
INFORMATION DOESN'T SAY HOW
MR. PRICE ACCOMPLISHED HIS --
THE DEED THAT HE WAS CHARGED
WITH.
WE DON'T KNOW WHAT EXACT DEED
HE WAS CHARGED HITT.
IF HE WERE CONVICTED OF -- AND
THE EVIDENCE TENDED TO SHOW
THAT HE PENETRATED THE VICTIM'S
VAGINA WITH HIS PENIS, THERE IS
NOTHING TO KEEP -- BASED ON
THIS CHARGING INFORMATION, THE
STATE FROM COMING BACK AND
SAYING, WELL, YOU KNOW, HE ALSO
-- THERE ARE A LOT OF
POSSIBILITIES HERE, YOUR HONOR.
HE ALSO COMMITTED ORAL
PENETRATION.
HE ALSO COMMITTED YOU KNOW --.
>> I THINK JUSTICE BELL'S
QUESTION ACTUALLY GOES TO, WHEN
YOU CAN ACTUALLY RATE THIS AND
HE'S ASKING YOU AT ANY POINT,
THE -- DESPITE THE FACT THAT
YOUR ARGUMENT REALLY IS THAT
THIS INFORMATION IS SO
DEFECTIVE THAT IT FAILS TO
CHARGE AN OFFENSE, THAT THAT
SHOULD HAVE BEEN CLEAR AT THE
BEGINNING OF THE CASE, AND YOU
CAN WAIT UNTIL ANY POINT TO
RAISE THAT.
THAT IS WHAT HIS QUESTION
REALLY GETS TO.
EVEN THOUGH IT IS SO DEFECTIVE
YOU CAN JUST WAIT AND -- UNTIL
WHAT IS IT -- HOW MANY YEARS
LATER NOW?
>> IT IS SIX YEARS LATER, YOUR
HONOR.
>> SIX YEARS LATER AND RAISE
THIS ISSUE, AT THAT POINT.
>> YOUR HONOR, THAT IS EXACTLY
WHAT THIS COURT SAID IN 1983,
IN STATE VERSUS GRAY.
>> A COUPLE OF THINGS, THE
PROCEDURAL POSTURE OF THIS CASE
PARTICULARLY CONCERNS ME
BECAUSE WE HAVE AN OBLIGATION
NOT JUST TO LOOK AT THIS CASE
BUT HOW IT FAKTS THE
ADMINISTRATION OF JUSTICE.
THIS COURT GETS HUNDREDS OF
PETITIONS, BY PRISONERS, TEN
YEARS OUT, 20 YEARS OUT, AND
THEY ALLEGE SOME DEFECT IN THE
INFORMATION.
AND THIS COURT HAS BEEN
ROUTINELY DISMISSING THOSE
CASES AND WHAT WE'VE GOT TO DO
HERE IS DISTINGUISH AND FIND
OUT IF THERE ARE ANY CATEGORY
OF CASES THAT GRAY FITS INTO
WHERE THERE IS A TRUE DENIAL OF
DUE PROCESS AND GRAY STARTS OUT
BY SAYING THE ORDINARY TEST, IF
THERE IS A DEFECT IN THE
CHARGING DOCUMENT, ACTUAL
PREJUDICE TO THE FAIR AND
BALANCED OF THE TRIAL.
BUT I WANT TO FAIRNESS OF THE
TRIAL BUT I WANT TO ASK YOU, IS
THERE ANY ALLEGATION HERE THAT
THERE WAS ANY PREJUDICE TO THE
FAIRNESS OF THE TRIAL OR COULD
THERE BE BASED ON WHAT WE KNOW
ABOUT WHAT THE CRIME WAS AND
WHAT HE WAS CONVICTED OF?
>> YOUR HONOR, AGAIN, THERE
WERE, I BELIEVE YOUR QUESTION
WAS, IS THERE ANY ALLEGATION OF
PREJUDICE TO THE TRIAL.
>> CORRECT.
>> AGAIN THAT IS SOMETHING THAT
THERE WAS NEVER BEEN -- THE
PETITIONER NEVER HAD A CHANCE
TO PROVE OR ARGUE.
>> ARE YOU SAYING THIS CATEGORY
BASED ON GRAY, THAT YOU COULD
RAISE IT TRULY AT ANY TIME IF
THERE IS SOMETHING VAGUE IN THE
INDICTMENT OR INFORMATION, A
VAGUENESS IN ONE OF THE CHARGES
-- ONE OF THE ELEMENTS, THAT
THAT CAN BE RAISED 20 YEARS, 30
YEARS LATER?
>> YOUR HONOR, I BELIEVE THAT
BASED ON GRAY AND OTHER CASES,
YES, THAT IS TRUE.
>> THEN WE NEED TO PROCEED FROM
RECEDE FROM GRAY.
>> YES, PROCEED FROM GRAY --
>>, RECEDE FROM GRAY, THAT IS
NOT IN ACTUALITY HOW IT HAS
BEEN INTERPRETED IN THE LAST 24
YEARS AND IT WOULD BE A
DISASTER FOR THE ADMINISTRATION
OF JUSTICE.
HERE, THIS PARTICULAR DEFENDANT
HAD A 3.850 PENDING ON APPEAL
WHEN HE FILED THIS SEPARATE
HABEAS, CORRECT.
>> THAT'S CORRECT.
AND THE 3850 HAD NOT BEEN
DECIDED AT THE TIME THE HABEAS
WAS FILED.
HE ALSO HAD A DIRECT APPEAL
WHICH WAS SO POORLY PROSECUTED
THAT HIS APPELLATE ATTORNEY WAS
SANCTIONED.
>> AND THAT MIGHT BE -- IF YOU
WANT TO GO ON THIS CASE, THERE
IS SOMETHING ELSE, BUT I WANT
TO -- I'M TALKING ABOUT THE BIG
PICTURE AND WHAT JUSTICE WELLS
ASKED YOU, ISN'T IT TRUE THAT
GRAY SAYS THAT IF THE CHARGING
DOCUMENT COMPLETELY FAILS TO
CHARGE A CRIME, A CONVICTION
FOR THAT VIOLATES DUE PROCESS.
>> CORRECT.
>> WHY AN EVIDENTIARY HEARING?
I DON'T UNDERSTAND THAT.
CAN'T YOU TELL FROM THE FACE OF
THE INDICTMENT AS YOU HAVE BEEN
ARGUING HERE WHETHER OR NOT IT
IS ALLEGED ALL OF THE ELEMENTS
OF THE CRIME AND IF IT DID NOT
ACCORDING TO YOUR POSITION,
HE'S -- THE CHARGES HAVE TO BE
DISMISSED.
WHAT PURPOSE WOULD AN
EVIDENTIARY HEARING SERVE?
>> YOUR HONOR, AN EVIDENTIARY
HEARING IS... WOULD SHOW IF
THIS COURT -- DEMANDS THAT HE
NEEDS TO SHOW PREJUDICE, AN
EVIDENTIARY HEARING WOULD --
>> I DON'T SEE IN GRAY WHERE IT
SAYS ANYTHING -- GRAY SAID
ORDINARILY YOU WOULD HAVE TO
SHOW THERE WAS PREJUDICE AT
TRIAL BUT THEN SEEMED TO CREATE
AN EXCEPTION WHERE THE
INDICTMENT WHOLLY FAILS TO
ALLEGE AN ESSENTIAL ELEMENT OF
THE CRIME.
IT WOULD BE A DENIAL OF DUE
PROCESS TO PROSECUTE ON THAT
INFORMATION.
SO IT SEEMS LIKE UNDER GRAY,
THERE IS NO PREJUDICE PROBLEM.
>> HE WAS SIMPLY -- HE WAS
SIMPLY NOT CHARGED WITH A
CRIME.
>> WHERE IS IT THAT YOU FEEL
THIS INFORMATION FAILS AS FAR
AS WHOLLY FAILING TO CHARGE --
THIS INFORMATION PRETTY CLEARLY
CHARGE A SEXUAL BATTERY AGAINST
AN UNEXAS STATED PERSON, AND
CITES THE SPECIFIC STATUTE?
IN OTHER WORDS, THERE IS MORE
THAN ONE PHYSICAL WAY TO COMMIT
A SEXUAL BATTERY, RIGHT?
IT CAN BE THESE ALTERNATIVE
WAYS THAT ARE IN THE
INFORMATION BUT DOESN'T IT
CLEARLY CHARGE A SEXUAL BATTERY
AGAINST AND IN EXAS STATED
PERSON?
DOES IT OR DOESN'T IT?
>> YOUR HONOR IT DOESN'T.
>> IT DOESN'T?
IT USES THE WORD SEXUAL
BATTERY.
>> IT USES THE WORDS --
>> AND CITES A SPECIFIC STATUTE,
YOU KNOW AND USES THE WORD,
INCAPACITATED PERSON.
WHAT IS LACKING IN THE
INFORMATION THAT YOUR CLIENT
WOULD LIKE TO KNOW AS FAR AS
THIS WHOLLY FAILING TO CHARGE A
CRIME?
IN OTHER WORDS, THERE IS A
DIFFERENCE BETWEEN AN ARGUMENT
THAT, WELL, YOU DIDN'T TELL ME
SPECIFICALLY ENOUGH WHETHER I
COMMITTED THE SEXUAL BATTERY IN
AALLY OR WHETHER I -- ANALLY OR
IN A DIFFERENT ORGAN OF THE
BODY OR SOMETHING LIKE THAT.
BUT YOU ARE SAYING THIS WHOLLY
FAILS TO CHARGE A CRIME.
WHAT IS LACKING AS FAR AS THE
INFORMATION.
YOU KNOW, I'M READING IT, IT
SAYS SEXUAL BATTERY.
IT SAYS INCAPACITATED PERSON.
WHAT -- IF YOU ARE GOING TO
CHARGE SOMEBODY WITH SEXUAL
BATTERY OF AND IN EXAS STATED
PERSON AND THEN CITE THE
SECTION OF THE STATUTE, WHAT
MORE DOES THE STATE NEED TO DO?
>> THE STATUTE AND THE CHARGING
DOCUMENT ARE VERY INCLUESIVE.
THEY GIVE CHOICES, EITHER/OR,
BY OR UNION WITH.
WHAT WAS COMMITTED HERE WAS
SOMETHING SPECIFIC.
IF THERE WAS MORE THAN ONE
BATTERY IT SHOULD HAVE BEEN
MORE THAN ONE COUNT --
>> NOW, AREN'T WE TALKING,
THOUGH, ABOUT SOMETHING ELSE?
THAT IS SOMETHING THAT COULD BE
SUBJECT TO DISCOVERY OR A BILL
OF PARTICULARS, OR PERHAPS EVEN
A MOTION TO DISMISS THE
INFORMATION.
IF YOU ARE CLAIMING THAT YOU
CAN'T CREATE A DEFENSE TO IT,
ALL -- IN OTHER WORDS WE HAVE
ALL THOSE PROCEDURAL DEVICES,
PRIOR TO THE TRIAL OF A CASE,
THAT ARE IN PLACE SPECIFICALLY
TO ADDRESS THOSE KINDS OF
ISSUES.
BUT FT. WE ARE GOING TO HAVE
SOMETHING THAT IS SO DEFECTIVE
THAT YOU CAN RAISE IT 20 YEARS
LATER, WHATEVER, DOESN'T IT
HAVE TO OMIT MUCH MORE THAN YOU
ARE PLANNING WITH THIS CHARGING
DOCUMENT ON THAT?
DOESN'T IT HAVE TO BE MUCH MORE
DEFECTIVE, I GUESS IS WHAT I'M
SAYING, YOU KNOW, LIKE YOU DID
SOMETHING WRONG ON OCTOBER THE
7th, 1975.
WELL, WAIT A MINUTE THE.
THAT MIGHT BE A PROBLEM.
BUT THIS SAYS SEXUAL BATTERY,
IT SAYS INCAPACITATED PERSON,
HAS THE TIME, HAS THE SPECIFIC
SECTION OF THE STATUTE.
ONE OF THE THINGS WE HAVE DONE
CONSISTENTLY IN OUR CASE LAW IS
SAY NO -- IF YOU CHARGE ALONG
THE LINES OF THE STATUTE STATE,
YOU ARE NOT GOING TO GET INTO
TOO MUCH TROUBLE.
YOU WILL BE IN PRETTY GOOD
SHAPE IF YOU DO THAT.
TELL ME AGAIN HOW THIS IS
WHOLLY DEFECTIVE AND NOT
CHARGING A CRIME.
BECAUSE I'M AFRAID I DON'T SEE
THIS WHOLLY DEFECTIVE IN NOT
CHARGING A CRIME.
I SEE A CRIME CHARGE THERE.
I WOULD BE SCARED TO DEATH IF I
WAS CHARGED WITH SEXUAL
BATTERY.
OF ANY INCAPACITATED PERSON ON
A CERTAIN DATE AND CITED THE
STATUTE.
>> YOUR HONOR, WHEN THE STATE
WISHES TO TAKE AWAY THE LIBERTY
OF A PERSON, THE BURDEN IS ON
THE STATE TO MAKE THE CHARGING
INSTRUMENT SPECIFIC AND TO
STATE THE SPECIFIC CRIME THAT
WAS COMMITTED.
HERE, WE HAVE THE WHOLE STATUTE
SET OUT AND THE WHOLE THING
BLANKETED ON MR. PRICE.
HE MIGHT HAVE DONE THIS OR
MIGHT HAVE DONE THIS.
WE'RE NOT SURE WHAT HE DID AND
WE WILL NOT BOTHER TO BE
SPECIFIC ABOUT WHAT HE DID.
>> BUT WAS THERE ANY MOTION FOR
BILL OF PARTICULARS OR ANYTHING
LIKE THAT?
THAT IS A DIFFERENT THING, YOU
SEE THAN SAYING NO CRIME AT
ALL.
THAT IS WHAT I'M HAVING
DIFFICULTY WITH.
MAYBE WE'RE NOT -- YOU'RE
SAYING NO KROIM AT ALL IS IN --
CRIME AT ALL IS CONTAINED IN
THOSE ALLEGATIONS.
>> IS THE STANDARD IS EITHER
COMPLETE OMISSION OF AN LIMIT
OR THAT THE ELEMENT IS SO VAGUE,
INK DISTINCT AN INDEFINITE IT
COMPLETELY FAILS TO SET AN
ELEMENT OF AN OFFENSE, THE
POSITION CANNOT BE IT WAS
COMPLETELY OMITTED.
IT IS TALKED ABOUT.
BUZZWORDS ARE THROWN OUT.
IT LOOKS -- NO ONE IS TRYING TO
SAY THE WORDS "SEXUAL BATTERY"
AND PENETRATION --
>> YOU ARE RUNNING OUT OF YOUR
TIME, MAYBE YOU WANT TO SAVE
SOME TIME FOR REBUTTAL HERE.
>> THANK YOU, YOUR HONOR.
>> MAY IT PLEASE THE COURT, I'M
CHRIS DAVENPORT AND I REPRESENT
THE STATE OF FLORIDA.
OUR POSITION IS THAT THE
DISTRICT COURT WAS CORRECT AND
THE TRIAL COURT WAS CORRECT IN
FINDING THAT THIS TYPE OF A
CLAIM CAN'T BE RAISED IN A
HABEAS PROCEEDING.
>> THERE IS A PROBLEM AND
PROBABLY WHY WE ENDED UP TAKING
THIS CASE, REALLY THIS CASE IS
NOT ALLEGING A -- OMITTING AN
ESSENTIAL ELEMENT.
IT IS SAYING THAT ONE OF THE
ELEMENTS WERE VAGUE AND
INDEFINITE.
YET THE DISTRICT COURT USES THE
TERM FATALLY DEFECTIVE AS IT
FAILED TO ALLEGE AN ESSENTIAL
ELEMENT OF THE OFFENSE.
LET'S GO BACK TO THIS.
IS THAT STATEMENT WHERE THEY
SAY THAT IT WAS DEFECTIVE
BECAUSE IT FAILED TO ALLEGE AN
ESSENTIAL ELEMENT BUT HAS TO BE
RAISED ON DIRECT APPEAL, DO YOU
SEE THAT AS -- THAT STATEMENT
AS BEING IN CONFLICT WITH GRAY?
>> IT IS IN CONFLICT WITH THE
PLACE IN GRAY THAT SAYS THAT
KIND OF A CLAIM CAN BE RAISED
AT ANY TIME INCLUDING A HABEAS
BUT SINCE GRAY, IT HAS BEEN 20
YEARS SINCE THEN AND THE COURT
MADE IT ABUNDANTLY CLEAR HABEAS
ISN'T USED FOR JUST ANYTHING
ANYMORE.
>> THIS CASE CAN BE
DISTINGUISHED IN THE -- THAT
THE 5th DISTRICT DIDN'T USE
PRECISE ENOUGH LANGUAGE THAT IT
DIDN'T EVEN COME INTO CONFLICT
WITH GRAY, CORRECT.
>> YES.
>> AND THE SECOND THING I WANT
TO KNOW, IS THE STATE'S
POSITION AND I KNOW YOU'D LIKE
GRAY COMPLETELY GONE AND I'M --
I UNDERSTAND THAT.
BUT I THINK THE PROBLEM I HAVE
FOR THIS CASE IS, YOU CAN SAY,
WELL, CERTAIN CLAIMS CAN BE
RAISED ON POST-QIBZ.
BUT THERE IS A WHOLE OTHER
ISSUE -- POSTCONVICTION BUT
THERE IS A WHOLE OTHER ISSUE AS
TO CLAIMS THAT CAN BE RAISED AT
ANY TIME AND SO THE QUESTION I
HAVE IS, AT LEAST WE'D NARROW
THIS TO SAY CLAIMS ABOUT AN
INFORMATION OR INDICTMENT HAVE
TO AT LEAST BE RAISED FOR 3.850,
NOT ON HABEAS.
WOULD YOU AGREE WITH THAT.
>> I WOULD AGREE WITH THAT.
YES.
>> IS THERE ANY CLASS OF CASES,
BECAUSE I HAVE BEEN TRYING TO
THING OF IT LAST FEW DAYS, THAT
REALLY WOULD BE A DENIAL OF DUE
PROCESS BECAUSE OF A DEFECT IN
THE CHARGING DOCUMENT?
CAN THE STATE THINK OF A
SITUATION WHERE IT WOULD REALLY
AMOUNT TO THAT -- WHAT IS THE
DICTA IN GRAY, THAT IS, IT
COMPLETELY FAILS TO ALLEGE A
CRIME, DENIAL OF DUE PROCESS.
IS THERE ANY SCENARIO WHERE WE
CLOSE THE DOOR COMPLETELY, THAT
YOU CAN THINK OF, WHERE IT
WOULD BE IN FACT A DENIAL OF
DUE PROCESS, SUCH THAT IT WOULD
CRY OUT FOR RELIEF AT ANY TIME.
>> IT IS HARD TO IMAGINE ANY
INFORMATION GETTING THROUGH
TRIAL COURT AND THROUGH DIRECT
APPEAL AND THROUGH 3850 WHEN IT
IS THAT SCREAMINGLY HORRIBLE
THAT IT DOESN'T EVEN CHARGE --
[INAUDIBLE] I MEAN, LET ME ADD,
JUST BECAUSE THERE IS AN
ALLEGATION THAT HE --
[INAUDIBLE] THE VIOLATION
DOESN'T MEAN IT SHOULD BE ABLE
TO BE RAISED AT ANY TIME.
>> YOU WOULD HAVE TO LOOK AT IT
AND SAY WHAT HAPPENED AT TRIAL?
IF THE INFORMATION, THE TRIAL
TRACKED THE INFORMATION AND IN
FACT THE PERSON WAS CONVICTED
OF A NONEXISTING CRIME, WOULD
THAT BE DIFFERENT AS OPPOSED TO
THE INFORMATION BEING DEFECTIVE
IN SOME WAY.
>> THE -- [INAUDIBLE] CRIME
WOULD BE DIFFERENT THAN -- A
DEFECT IN THE INFORMATION, THAT
HAS TO BE RAISED AT TRIAL,
SOMETHING SIMPLE LIKE THIS.
IF IT IS SOMETHING BIG OR
MISSING AND ESSENTIALLY ELEMENT
IT CAN BE RAISED IN THE 3850 IF
ITS FUNDAMENTAL ERROR, BUTTS
THERE ARE NO LIMITS ON HABEAS
AND YOU CAN FILE IT 15, 20
YEARS AFTER YOUR CONVICTION AND
THE COURT MADE CLEAR A
COLLATERAL ATTACK ON A
CONVICTION SENTENCE HAS TO BE
RAISED IN A 3850 NOW.
THAT'S THE PROCEDURE FOR THAT
AND THE DICTA IN GRAY THAT SAYS
THIS PARTICULAR PROBLEM CAN BE
RAISED IN THE STATE HABEAS
SHOULD BE RECEDED FROM BY THE
COURT BECAUSE IT CAUSED THIS
DEFENDANT A LITTLE BIT OF
CONFUSION, INSTEAD OF LOOKING
AT CURRENT CASE LAW HE LOOKED
AT THIS OLD CASE LAW AND SAID,
I CAN RAY IT WHENEVER I WANT
AND I'M SIT ON IT AND NOT
INCLUDE IT IN MY -- [INAUDIBLE]
THAT IS WRONG AND THIS COURT
MADE IT CLEAR 3850 IS THE WAY
TO RAISE THESE CLAIMS AND THAT
SHOULD INCLUDE AN ATTACK ON THE
INFORMATION.
>> WHAT -- HOW DO YOU RESPOND
TO THE ARGUMENT, LET'S SAY,
THIS WAS CHARGED WITH
PENETRATION.
AND THE DEFENDANT WAS FOUND NOT
GUILTY?
AND TIME PERIOD HAS PASSED AND
THE STATE COMES BACK AND
CHARGES ORAL.
TOUCHING OR CONTACT.
THE SAME OFFENSE, SAME DATE,
BUT IN A DIFFERENT WAY.
HOW WOULD THAT IMPACT A
DEFENDANT HERE FROM BEING
CHARGED AS HE ARGUES?
>> WELL --
I THINK HE WOULD RAISE A DOUBLE
JEOPARDY VIOLATION AND THEY'D
LOOK AT THE TRANSCRIPT AND THE
INFORMATION AND WOULD SAY,
YOU'VE ALREADY BEEN IN JEOPARDY
FOR THAT OFFENSE AND IF THEY
DENY --
>> BUT THEY ARE SEPARATE,
AREN'T THEY, WE ALLOW SEPARATE
OFF FENCES TO BE CHARGED.
>> RIGHT.
THIS PARTICULAR INFORMATION
SAYS AND/OR.
AND ACTUALLY THE VICTIM
TESTIFIED TO BOTH.
BUT IT WAS ONLY CHARGED IN ONE
COUNT.
HE IS NOT FACING A DOUBLE
JEOPARDY PROBLEM HERE.
ONE THING, SEXUAL --
[INAUDIBLE].
>> NO, HE'S NOT HERE BUT THAT
IS MY CONCERN IS SOMEBODY ELSE,
AND IF THE STATE FAILS AND THEN,
SO WE OPEN THE DOOR FOR THE
STATE, IN ARTFULLY DRAFTING THE
INFORMATION, TO GIVE THEM
LEEWAY IF THEY FAILED TO PROVE
IT THE FIRST TIME TRY AND GET
IT FOR ANOTHER JURY FOR AN
OFFENSE THAT MAY HAVE OCCURRED
IN THE SAME DATE BUT A
DIFFERENT MANNER.
>> THAT'S RIGHT.
THAT IS WHY HE SHOULD ASK FOR A
STATEMENT OF THE PARTICULARS OR
MOVE TO DISMISS.
I MEAN, HE NEEDS TO PROTECT HIS
RIGHTS, TOO.
HE CAN'T JUST HOPE EVERYTHING
GOES WELL.
SO IF HE MOVES TO DISMISS AND
IT'S AMENDED IT WOULD CLEAR UP
THE PROBLEM.
IF HE DOESN'T --
>> BUT SHOULDN'T THIS BURDEN BE
ON THE STATE TO ADEQUATELY
INFORM AND CHARGE SO WE KNOW IN
THE FUTURE WHAT WAS BEING
CHARGED AND NOT HAVE TO GO
THROUGH ALL OF THESE
MACHINATIONS OR PLACE IT ON THE
DEFENDANTS.
>> OF COURSE IT IS THE BURDEN
OF THE STATE AND IF THE
DEFENDANT, THIS THE STATE HAS
NOT MET THE BURDEN HE NEEDS DO
SOMETHING ABOUT THAT.
HE'D FILE A MOTION TO DISMISS
IN THAT SCENARIO OR, YOU KNOW,
IF HE COMES BACK AND IS CHARGED
LATER, FILE A MOTION TO DISMISS
ON DOUBLE JEOPARDY GROUNDS FOR
THE LATER CHARGE.
IT'S NOT LIKE HE IS WITHOUT A
REMEDY OR WITHOUT HIS RIGHTS OR
NEEDS TO HAVE IT LEFT OPEN
FOREVER IN A HABEAS PROCEEDING.
THAT IS WHAT I THINK THE ISSUE
IS, IS WHETHER YOU CAN
CHALLENGE THE INFORMATIONS IN A
HABEAS PROCEEDING, AND ITS OUR
POSITION THAT YOU CAN'T, IT
LIKES ANY OTHER DUE PROCESS
PROBLEM THAT COMES UP IN TRIAL.
YOU NEED TO FILE IT UNDER A
3850.
IF ITS FUNDAMENTAL ERROR AND IF
IT IS SOMETHING LIKE THIS,
WHERE YOU ARE CONFUSED AS TO
WHAT HE PENETRATED HER WITH,
NEEDS TO BE FILED ON DIRECT
APPEAL OR MORE APPROPRIATELY,
BEFORE TRIAL SO IT CAN BE FIXED
AND IF THERE IS CONFUSION WE
CAN FIX IT.
>> I WONDER IF SOMETHING LIKE
THIS COULD BE RAISED ON DIRECT
APPEAL WITH OUT IT HAVING BEEN
RAISED BELOW.
I MEAN, THIS PARTICULAR
SITUATION.
>> THIS PARTICULAR SITUATION,
THE INFORMATION IS FINE, IT
CITES THE STATUTE AND HE WAS ON
NOTICE WHAT THE ELEMENTS WERE.
IF IT WAS FUNDAMENTAL ERROR AND
REALLY MISSING AN ESSENTIAL
ELEMENT THAT CAN BE RAISED FOR
THE FIRST TIME ON APPEAL AND IF
IT IS A TECHNICAL DEFICIENCY IT
NEEDS TO BE RAISED AT TRIAL.
AND HE COULD ARGUE TRIAL
COUNSEL WAS INEFFECTIVE AND
FILE A 3850 AND WOULD HAVE TO
SHOW PREJUDICE.
>> WHAT DO YOU CONTEND THAT
MR. PRICE WAS REALLY CHARGED
WITH IN THIS CASE?
BECAUSE WHEN YOU READ THE
INFORMATION, WITH THE AND AND
THE OR AND THE THIS AND THE
THAT, IT IS, TO ME, CONFUSING
AS TO WHAT THE STATE WAS
ALLEGING MR. PRICE DID.
WHAT DO YOU CONTEND THIS
INFORMATION ACTUALLY CHARGES
HIM WITH.
>> IT CHARGES HIM WITH SEXUAL
BATTERY --
>> I MEAN, WHAT SPECIFIC SEXUAL
BATTERY?
WE KNOW IT SAYS SEXUAL BATTERY
AND CITES THAT STATUTE BUT WHAT
SPECIFICALLY WAS HE ALLEGED TO
HAVE DONE THAT CONSTITUTES THE
ACT OF SEXUAL BATTERY.
>> HE WAS ALLEGED TO HAVE OR
REALLY OR VAGINALLY PENETRATED
HER.
OR MADE CONTACT WITH HER SEXUAL
ORGANS.
NOW, IT DOESN'T GO INTO THE
FACTS, DOESN'T SAY WHAT HE USED
TO DO THAT.
HE COULD HAVE FILED A MOTION TO
DISMISS OR A MOTION FOR
STATEMENT OF PARTICULARS.
IF HE WAS REALLY CONFUSED ABOUT
THAT.
I MEAN, THE ISSUE IN THIS CASE
--
>> SO THE INFORMATION CHARGES
HIM WITH EITHER VAGINALLY OR
ANALLY OR OR REALLY DOING WHAT?
>> PENETRATING THE SEXUAL
ORGANS OF THE VICTIM.
>> WITH WHAT.
>> IT DOESN'T SAY WITH WHAT BUT
CITES THE STATUTE THAT SETS OUT
THE ELEMENT AND IT SAYS SEXUAL
ORGAN ON ANOTHER.
AGAIN, IF HE WAS CONFUSED AT
TRIAL, HE COULD HAVE EASILY
FIXED THAT.
BY FILING A MOTION TO DISMISS
AND THE STATE WOULD HAVE
AMENDED THE INFORMATION TO
CLARIFY THAT.
YOU KNOW, THEY DON'T GO INTO
TRIAL TOTALLY BLIND ANYMORE.
I MEAN, THERE IS DISCOVERY AND
--
>> WHAT WAS THE PROOF AT TRIAL.
>> THE VICTIM TESTIFIED THAT HE
RAPED HER.
PENETRATION --
>> DID WHAT.
>> THAT HE RAPED HER.
>> HOW.
>> HIS PENIS PENETRATED HER
VAGINA AND HE ALSO PERFORMED
ORAL SEX ON HER AND HE
TESTIFIED AND SAID, YEAH, THAT
ALL HAPPENED BUT IT WAS
CONSENSUAL AND THEY ATTACKED
THE CREDIBILITY OF THE VICTIM
AND THAT SAID SHE SUPPOSEDLY
MADE RAPE ALLEGATIONS BEFORE
AND REGRETTED HAVING SEX WITH
SOMEONE AND THE NOT LIKE HE WAS
PREJUDICED IN HIS DEFENSE.
THE INFORMATION CHARGES A
CRIME.
EVEN IF IT DIDN'T, HE CAN'T
RAISE IT IN HABEAS.
HE NEEDS TO RAISE IT --
>> BUT YOU CONCEDE THAT YOU CAN
RATZ OTHER THAN ON DIRECT
APPEAL.
THE 5th DISTRICT SAYS THAT YOU
CAN ONLY RAISE IT ON DIRECT
APPEAL.
>> IF THIS IS A TECHNICAL
DEFICIENCY IT SHOULD BE RAISED
AT TRIAL.
IF NOT RAISED AT TRIAL, NEEDS
TO BE RAISED ON DIRECT APPEAL,
IF ITS FUNDAMENTAL ERROR AND
YOU CAN RAISE IT IN THIS 3850,
FUNDAMENTAL ERROR AS WELL.
>> AND IN THE HABEAS WHAT
PREJUDICE DID HE ALLEGE.
>> HE DIDN'T ALLEGE ANY
PREJUDICE.
HE SAID I WAS CONVICTED OF A
CRIME, NOT CHARGED.
WHICH IS, HE TOOK THE LINE FROM
GRAY.
>> CONCLUSORY ALLEGATION.
>> YES.
>> I WANT TO MAKE SURE ABOUT
THIS.
BECAUSE LET'S BE CLEAR ABOUT
WHAT WE WOULD SAY ASSUMING WE
AGREE WITH YOU THAT GRAY NEEDS
CLARIFICATION.
WHAT IS IT THAT COULD BE RAISED
ON POSTCONVICTION RELIEF
REGARDING THE INFORMATION OR
INDICTMENT.
>> FUNDAMENTAL ERROR WHICH YOU
COULD RAISE ON DIRECT APPEAL
WHICH IS THE INFORMATION WAS SO
DEFICIENT THAT IT IS MISSING AN
ESSENTIAL ELEMENT AND THE
DEFENDANT WAS PREJUDICED AT
TRIAL.
>> THEY HAVE TO -- BECAUSE 3850
REQUIRES PREJUDICE, WOULD IT
REQUIRE PREJUDICE THEN.
>> THAT IS THE TEST FOR WHETHER
IT'S FUNDAMENTALLY DEFICIENT.
>> HOW DO YOU GO BACK TO THE
LANGUAGE IN GRAY WHICH SAYS,
ORDINARILY PREJUDICE IS
REQUIRED BUT IF IT WHOLLY OMITS
AN ESSENTIAL ELEMENT OR WHOLLY
FAILS TO -- CHARGING COMPLETELY
FAILED TO CHARGE A CRIME, A
CONVICTION VIOLATES DUE
PROCESS.
>> RIGHT.
SO IF THE INFORMATION SAYS ON
MAY 7th HE COMMITTED A CRIME,
THAT WOULD -- [INAUDIBLE] RAISE
THAT ON DIRECT APPEAL FOR THE
FIRST TIME.
>> OR ON POSTCONVICTION.
>> POSTCONVICTION --
>> BUT YOU SAY AFTER THE TWO
YEAR TO THAT EXTENT, YOU SAY NO,
WE DIDN'T MEAN AT ANY TIME.
>> AND I WOULD SAY, 3850 IS THE
PLAN -- [INAUDIBLE] AND NEEDS
TO USE THAT PROCEDURAL VEHICLE
AND THERE ARE TIME LIMITS AND
PLEADING REQUIREMENTS FOR THAT
AND WE WOULD ASK TO RECEIVE
FROM GRAY -- [INAUDIBLE].
>> THANK YOU.
>> THANK YOU.
>> UNFORTUNATELY YOU HAVE USED
MOST OF YOUR REBUTTAL SO YOU
NEED TO BE VERY DIRECT.
>> YOUR HONOR, MR. PRICE IS
JUSTIFIABLY -- RELIED ON FRAY
AS PRECEDENT.
IF THIS COURT WERE TO RECEDE
FROM GRAY AND CREATE A NOVEL
RULE, IT SHOULD NOT DO SO ON
MR. PRICE'S BACK.
THE NEW RULE SHOULD NOT APPLY
TO MR. PRICE.
THE SUPREME COURT STATED IN
FORD VERSUS GEORGIA, 495 US 411,
1991 OPINION, THE STATE
CONCEDES THAT MR. -- THIS
CHARGING INFORMATION DOES NOT
SAY WHAT MR. PRICE USED TO
PENETRATE.
THAT IS RELEVANT AS STATED IN
-- [INAUDIBLE] BRIEF.
BECAUSE IF IT IS THE ORGAN OF
THE PERPETRATOR PENETRATING THE
VICTIM THEN THERE NEED BE ONLY
CONSTATIC.
IF, HOWEVER, THE ALLEGATION IS
THAT THE PERPETRATOR USED
SOMETHING ELSE TO DO THE
PENETRATING --
EXCUSE ME, I THINK A GOT THAT
WRONG.
WITH ONE THERE NEEDS TO BE ONLY
CONTACT AND WITH THE OTHER
THERE NEEDS TO BE PENETRATION.
I BELIEVE IS AN OBJECT AND MUST
BE PENETRATION.
SO THAT IS EXTREMELY IMPORTANT,
WHAT KIND OF PENETRATION
OCCURRED AND WITH WHAT.
THIS CHARGING INFORMATION DID
NOT STATE -- DID NOT STATE AN
OFFENSE THAT COULD BE DEFINED
BY THE -- MR. PRICE.
>> AND WITH THAT --
>> I "WEST --
>> DO YOUR CONCLUSION.
>> I WOULD REQUEST THE COURT
REVERSE AND I THANK YOU ALL.
>> THANK YOU.
>>