Motion to Compel Statement of Particulars for Sanctions & Strike & Dismiss

COMES NOW the Defendant, by and through the undersigned attorney, pursuant to Rule 3.140(n), Florida Rules of Criminal Procedure, respectfully moves this Honorable Court to order the State of Florida comply with its October 5 Order, to file a written Statement of Particulars, providing the specific details as to the alleged offenses in Counts 3 and 4 of the Information. It is submitted that the Defendant is entitled to the above information under Rule 3.140(n), Florida Rules of Criminal Procedure, and in support thereof, states as follows:

1. On October 5, this Court issued an Order granting defendant’s second motion for statement of particulars. That Order, in relevant part, stated: “The State shall provide a statement of particulars, as to Counts III and IV of the Information, specifying the illegal act (or acts) the defendant is alleged to have intended to commit.”
2. Instead of complying, the State chose to file its Seconded Amended Information. While that Information did state three specific illegal acts the defendant is alleged to have intended to commit, as required by the Court’s Order, it ignores the Court’s Order, as it includes, directly after the three specified acts, and, as in the two previous Informations, includes the following language as to Count III, “or otherwise engage in any sexual conduct, contrary to Florida Statute 847.0135(3)(b),” and the identical language, “or otherwise engage in any sexual conduct, contrary to Florida Statute 847.0135(3)(b),” as to Count IV.
3. The term “sexual conduct” is defined, in §847.001(16), in relevant part, as:
actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
4. By re-alleging the exact same allegation of “sexual conduct” in both Counts III and IV, the State ignores the clear language in this Court’s Order.
5. Additionally, the Second Amended Information suffers from the same defective vagueness as its two predecessors. As show above, the statutory definition for “Sexual conduct” lists 21 different crimes (not including attempt, which essentially doubles the possible means). Furthermore, the inclusion in this definition of “any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed,” broadens the range of unspecified conduct to include 78 different forms of sexual battery under §794.011(2) – (9).
6. The continued inclusion, in the Second Amended Information, as to Count III, of the phrase “or otherwise engage in any sexual conduct, contrary to Florida Statute 847.0135(3)(b),” and of the identical language, “or otherwise engage in any sexual conduct, contrary to Florida Statute 847.0135(3)(b),” as to Count IV literally encompasses almost one hundred predicate statutory offenses covered under §§847.0135(3)(b) and (4)(b), Fla. Stat. The defendant not only cannot discern the underlying offense with which he is charged from the discovery, he is not required to do so. This Court’s Order of October 5 so holds, and the State has failed to comply with said Order.
7. Without the specific information regarding the alleged act the Defendant committed, the Defendant is unable to properly prepare to defend against the allegations in Counts III and IV. The client is entitled to know, with sufficient specificity, the specific act he is to have allegedly committed. Without this information, he is unable to answer the allegations, unable to properly defend himself on these charges, and unable to properly prepare pretrial motions.

Memorandum of Law

8. The instant motion is made pursuant to Rule 3.140(n), Fla. R. Crim. P., which states, in part: “[t]he court, on motion, shall order … a statement of particulars when the … information … fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense.” Id.(emphasis added). Respectfully, the position that the defendant can figure out the particulars from the discovery does not conform to the requirements of the rule.
9. Additionally, Rule 3.140(n), Fla. R. Crim. P. states that the “statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.” Id.(emphasis added).
10. “The rule is well established in this jurisdiction that an indictment should allege every necessary element constituting the offense charged, and no such element left to inference.” Smith v. State, 78 So. 530, 532 (Fla. 1918)(emphasis added).
11. In Simpson v. State, 176 So. 515, 517 (Fla. 1937), the Florida Supreme Court held that the defendant was entitled to be informed of the nature and cause of the accusation against him. The court further stated, “unless the information or indictment charge the accused with the offense clearly and sufficiently so that he may know the nature and cause of the accusation against him he is entitled to his discharge.” Id.
12. The Fifth DCA’s opinion in State v. Thomas, 622 So. 2d 174 (Fla. 5th DCA 1993), is particularly instructive here. Thomas was charged with burglary (entering a dwelling with the intent to commit an offense therein) and filed a motion for a statement of particulars specifying which offense it was alleged he intended to commit within the dwelling.
13. Thomas’ motion was granted by the trial court, who “ordered the state to provide, within five days, a specific description of the crime which Thomas intended to commit inside the subject dwelling.” Id. at 175. In response to that order, “[r]ather than specifying a particular offense, the state filed an exhaustive list of [17] offenses which Thomas possibly could have intended to commit.” Id.
14. Thomas then moved to dismiss the information, “which the trial court, in understandable frustration, granted.” Id. Although the Thomas court found that remedy to be too extreme a sanction, under the circumstances, it held “[a]lthough an information charging burglary need not specify the offense the defendant was alleged to have intended to commit, upon timely request by Thomas, and upon order of the trial court, the state was required to furnish this specificity before Thomas’s case went to trial.” Id. at 175-76.
15. In the instant case, a timely motion having been made, the defendant, like Thomas, is entitled to “a specific description of the crime” he is alleged to have intended to commit, both as to Count III, naming the specific offense or offenses that the defendant allegedly “seduce[d], solicit[ed], lure[d] or entice[d] or attempt[ed] to seduce, solicit, lure or entice” the “person believed to be a parent, legal guardian or custodian of a child to consent to the participation” in; and as to Count IV, naming the specific offense or offenses that the defendant allegedly traveled to engage in, after meet a minor to commit.
16. This conclusion is confirmed by a review of the standard jury instruction for Counts III and IV. Element 3, as to Count III (Instruction 11.17(b), Fla. Std. Jury Inst. Crim.), and element 4, as to Count IV (Instruction 11.17(d), Fla. Std. Jury Inst. Crim.), are identical, and states:
(Defendant) [seduced] [solicited] [lured] [enticed] [attempted to] [seduce] [solicit] [lure] [entice] a [parent] [legal guardian] [custodian of [(victim)] [person believed to be [a parent] [legal guardian] [custodian of (victim)] to consent to the participation of (victim) in any act described in (any illegal act as charged in the indictment or information under chapter 794, 800, 827, or other unlawful sexual conduct).
17. The instruction clearly calls for the insertion, into the jury charge, of the specific “other unlawful sexual conduct” in the manner as “charged in the indictment or information.” Id.(emphasis added).
18. Thus, it cannot be gainsaid that the defendant is entitled to the relief sought in this subject motion, as ordered by the Court, an Information or Statement of Particulars “specifying the illegal act (or acts) the defendant is alleged to have intended to commit.”
19. The portion of the Second Amended Information, in Count III, containing the phrase “or otherwise engage in any sexual conduct, contrary to Florida Statute 847.0135(3)(b),” and of the identical language, “or otherwise engage in any sexual conduct, contrary to Florida Statute 847.0135(3)(b),” in Count IV violates this Court’s Order, and should be stricken.
20. Alternatively, this Court should enter an Order dismissing Counts III and IV of the Second Amended Information, or impose such other sanctions as it deems appropriate

WHEREFORE, the defendant respectfully prays this Honorable Court enter an granting the relief herein sought.