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holding that scienter was not an element of a statute prohibiting the possession of gambling devices
Summary of this case from Beshore v. Dept. of Financial ServOpinion
No. 91-1150.
August 13, 1991.
Petition from the Circuit Court, Appellate Division, Steven D. Robinson, Philip Bloom and Eugene J. Fierro, JJ.
Richey, Munroe, Fine, Goodman Armstrong, and Kirk W. Munroe, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., and Angelica D. Zayas, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BARKDULL and GERSTEN, JJ.
By the petition for certiorari in this matter, we are called upon to review an opinion of the Circuit Court, Appellate Division, which reads as follows:
Fierro, Eugene J., J.
"This is an appeal that arises from the granting of the Defendant's (Appellee) Motion to Dismiss the State's Information wherein the Defendant asserted that the Information which charged the Defendant with unlawful possession of a blackjack table in violation of Section 849.231, Florida Statutes, did not allege that the Defendant was using the device for gambling, nor that he intended to do so.
As such, the Defendant argued, the Information failed to state a cause of action because it omitted an essential element of the crime, scienter (i.e., that gambling occurred or that there was any intent to do so).
On its face the statute does not state whether or not "scienter" is an essential element to be either alleged or proved. The appellant argues that whereas the statute denounces the doing of an act as criminal without specifically requiring criminal intent, it is not necessary for the State to prove that the commission of such act was accompanied by criminal intent.
The appellee argues that, under the statute, even the mere possession of a `souvenir' such as a `croupier's stick from Las Vegas' would be a violation of the statute. He cites Schultz v. State, 361 So.2d 416 (Fla. 1978) in support of his contention that scienter is or should be required.
We note that the Supreme Court in Schultz finds the statute constitutional. The appellee's argument is somewhat compelling and while a blackjack table could be used or designated to be used for a legal purpose, as well as an illegal purpose, it is not for this Court to inquire into the legislature's intent in drafting the statute in question. The statute on its face clearly does not require scienter. We concur that the Information filed against he Defendant was improperly dismissed by the trial court.
REVERSED AND REMANDED.
(ROBINSON and BLOOM, JJ., concur)."
Following review of the Supreme Court's opinion in Schultz v. State, supra, cited by the Circuit Court, we are of the view that no departure from the essential requirements of the law has been occasioned by the appellate division's opinion, and to the contrary, we approve it and deny certiorari.
Certiorari denied.