State v. Waskin

481 So. 2d 492, 11 Fla. L. Weekly 494
CourtDistrict Court of Appeal of Florida
DecidedDecember 3, 1985
Docket84-2474
StatusPublished
Cited by11 cases

This text of 481 So. 2d 492 (State v. Waskin) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Waskin, 481 So. 2d 492, 11 Fla. L. Weekly 494 (Fla. Ct. App. 1985).

Opinion

481 So.2d 492 (1985)

The STATE of Florida, Appellant,
v.
Robert WASKIN, Appellee.

No. 84-2474.

District Court of Appeal of Florida, Third District.

December 3, 1985.

*493 Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellant.

Jerrell A. Breslin, Miami, for appellee.

Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal by the State from an order dismissing an information which charged the defendant with soliciting one Tom Tretola, an undercover police officer believed by the defendant to be a hitman, to murder the defendant's ex-wife.[1] The trial court concluded from the undisputed facts (consisting primarily of the taped conversation between the defendant and the prospective "hitman") that, although the defendant discussed the possibility of having his ex-wife killed, he and the undercover officer "never came to an agreement about the murder of the defendant's ex-wife ... and agreed only to meet again with the undercover officer for further discussions at an unspecified time in as many as five months from the time of the conversation." Contrary to the trial court, we find that the facts before it establish a prima facie case of the defendant's guilt of the crime of solicitation, whether or not it is deemed that an agreement was reached. Accordingly, we reverse the order under review and remand the case for trial.

Section 777.04(2), Florida Statutes (1983), under which the defendant was charged, provides in pertinent part:

"Whoever solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such an offense commits the offense of criminal solicitation... ." (emphasis supplied).

It is well settled that "[f]or the crime of solicitation to be completed, it is only necessary that the actor, with the intent that another person commit a crime, have enticed, advised, incited, or ordered or otherwise encouraged that person to commit a crime. The crime solicited need not be committed." W. LaFave & A. Scott, Handbook on Criminal Law § 58, at 414 (1972). This is so because the laws against solicitation are "concerned not only with the prevention of the harm that would result should the inducements prove successful, but with protecting inhabitants of this *494 state from being exposed to inducements to commit or join in the commission of the crime specified... ." Miller v. State, 430 So.2d 611, 614 (Fla. 4th DCA 1983) (quoting People v. Burt, 45 Cal.2d 311, 313, 288 P.2d 503, 505 (1955)). Thus, it is said that "[t]he gist of criminal solicitation is enticement... ."[2]Hutchinson v. State, 315 So.2d 546, 548 (Fla. 2d DCA 1975) (distinguishing between an attempt and solicitation).

With this as our backdrop, we turn to the facts of the present case.

As a result of some preliminary telephone conversations, the defendant met with Tretola late one evening in Tretola's car in the rear parking lot of a Miami motel. Their meeting was observed by a surveillance team of other police officers and their conversation recorded on tape. We here recount the pertinent portions of the conversation between them:

"[Tretola] — Dr. Waskin, I presume?

"[Defendant] — Yes sir

"[Tretola] — Why don't you get into my car so we can talk? Okay?

"[Tretola] — How you doing? My name is Mr. T. How are you?

... .

"[Tretola] — And, you know, you mentioned something about price and I cut you off because I don't talk business on the phone and ah, I just know you have a problem.

"[Defendant] — Right

"[Tretola] — And right now you tell me what your problem is and I can judge my price. Is that fair and square, or?

"[Defendant] — Oh yea. The problem is my ex-wife.

"[Tretola] — They are problems.

"[Defendant] — Ah. She caused a lot of aggravation. I'm just trying to find some way to solve this problem.

"[Tretola] — That's my business.

"[Defendant] — Ah, nobody can hear. [At this time, the Doctor is checking the back seat of the vehicle.]

"[Tretola] — Nobody can hear

"[Defendant] — But you know I, the biggest problem, you know, money. My two oldest children live with her (inaudible)

"[Tretola] — Yea

"[Defendant] — But ah, the biggest problem right now is something, you know, can't be linked to me.

"[Tretola] — It can't be linked to you. Well

...

"[Defendant] — We've been in and out of court umpteen times, it cost me a fortune.

"[Tretola] — You ah, I assume you, that you want the permanent?

"[Defendant] — Yea. Anything else wouldn't ...

"[Tretola] — Solve the problem.

"[Defendant] — Wouldn't do

"[Tretola] — Ah, you want it like an accident or what? You know?

"[Defendant] — What if (inaudible), what it

"[Tretola] — Well down here it's kind of hard, cause you know, car accidents, you know, you can f____ around with a brake line, something like that, but there's not many hills down here.

"[Tretola] — And the job isn't, isn't ah . .

"[Defendant] — And another problem, she takes the kids to school and ...

"[Tretola] — It gets kind of dangerous, you know, I don't want to ah ... There's other ways, you know.

"[Tretola] — That's no problem

"[Tretola] — You said that you wanted it like an accident . . ah

*495 "[Defendant] — Something, you know, anything that, you know

"[Tretola] — Well, people, every day people get mugged on the street.

"[Defendant] — Certainly

"[Tretola] — And get robbed and ...

"[Defendant] — Certainly anything like that

"[Tretola] — And the guy get carried away with the robber, and ...

"[Defendant] — If that's, you know

"[Tretola] — Before you know it, the guy, you know, the person, ah, is dead. You know. The only problem is I have to start checking her out and I need some information.

"[Defendant] — OK, what you're saying now, you have to know where she (inaudible)

"[Tretola] — You want to talk economics, I believe?

"[Defendant] — Yea. Your price ...

"[Tretola] — I understand, I know what you're saying. It's a business. I'm in the business and you're in a business. OK? What you been telling me, it doesn't appear too hard. Ah, just by what you're telling me, you know, that she, that she goes out a lot on off weekends, when ...

"[Defendant] — The problem is getting money, how, when

"[Tretola] — Well that's, that's

"[Defendant] — I can, you know, I can go to the bank and borrow it. I pay you (inaudible) I've got it in cash then I can just go where nobody knows about (inaudible). I just have things (inaudible) in cash for a while. Right now I'm working in tight. A friend of ours that I loaned twenty thousand dollars for his business and it's just down the drain

"[Defendant] — Yes. I loaned him twenty thousand dollars, and I got a loan out from my bank to pay it back. Unfortunately, I'm still paying that. Now trying to work that out . .

"[Tretola] — Would do you, what kind of figure are you looking at? We'll put it this way, Doc, what's it worth to you?

"[Defendant] — He mentioned ... now I know that

"[Tretola] — Like I said, no one mentioned any figures, Doc. I don't know where the f____

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Bluebook (online)
481 So. 2d 492, 11 Fla. L. Weekly 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-waskin-fladistctapp-1985.