Zuppardi v. State

367 So. 2d 601
CourtSupreme Court of Florida
DecidedOctober 26, 1978
Docket51248
StatusPublished
Cited by9 cases

This text of 367 So. 2d 601 (Zuppardi v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zuppardi v. State, 367 So. 2d 601 (Fla. 1978).

Opinion

367 So.2d 601 (1978)

Louis ZUPPARDI, Angelo Castello and Guy Zona, Appellants,
v.
STATE of Florida, Appellee.

No. 51248.

Supreme Court of Florida.

October 26, 1978.
Rehearing Denied March 7, 1979.

*602 Loyd C. Mosley, Clearwater, for appellants.

Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

ENGLAND, Chief Justice.

Appellants in this proceeding challenge the constitutionality of Florida's "bookmaking" statute, Section 849.25(1), Florida Statutes (1975), on the ground that it violates due process because of vagueness and overbreadth.[1]

The facts are not in controversy. While on assignment to uncover illicit gambling operations, three special investigators learned from confidential informants that appellant Zona was taking bets on football games from members of a country club in Pinellas County and was receiving "point spread" information over a pay telephone at the club. Another informant related that Zona gave club members his unlisted telephone number and the number of appellant Zuppardi for the purpose of placing bets in his absence. Callers to these numbers were instructed to ask for a "writer" identified only as "Tony." One undercover agent personally monitored a call made by an informant during which the informant gave a code and in response heard a male voice identify himself as "Tony," furnish the requested point spread information, and advise the informant that Zona was accepting bets at the club.

The undercover officers were unable to contact Zona directly at the club because only members were admitted and the informants refused to introduce them into the club for fear of reprisals if they were identified. To overcome this problem, the officers applied for and received orders authorizing a wiretap of Zuppardi's and Zona's telephones. When they later learned that Zona sought approval from appellant Castello before accepting large wagers and that both Zona and Zuppardi reported each day's betting transactions to Castello, another wiretap permit was acquired for Castello's telephone. Based on the totality of information obtained during the investigation, search warrants for the three residences *603 were duly obtained and various gambling paraphernalia was seized. Informations were subsequently filed, charging the appellants with bookmaking.

Appellants moved to dismiss the charges against them, alleging that the "bookmaking" statute is unconstitutionally vague and overbroad. They also moved to suppress the intercepted communications, on grounds of non-compliance with Section 934.09(1)(c), Florida Statutes (1975), and to compel disclosure of one confidential informant's identity in order to establish whether the state had obtained consent to the first intercepted communication as required by Section 934.03(2)(c), Florida Statutes (1975). All motions were denied by the trial court, and after appellants changed their original not guilty pleas to no contest pleas, the trial court adjudged them guilty and imposed sentences.[2]

1. The trial judge properly held that the bookmaking statute is neither vague nor overbroad. Section 849.25(1) provides:

As used in this section, the term "bookmaking" shall be deemed to be the taking or receiving of any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man, beast, fowl or motor vehicle.

Relying entirely on cases from other jurisdictions,[3] appellants argue as to vagueness that the common and ordinary meaning of "bookmaking" connotes some writing or recording of bets in a book, so that the statute fails to give fair notice that criminal penalties may be imposed for "oral" as well as recorded bet-taking. Based on the same connotation of "recorded" bookmaking, they argue as to overbreadth that the statute outlaws conduct which is otherwise lawful, namely oral bet-taking.[4]

We reject appellants' view of Section 849.25(1). The statute is sufficiently clear in its terms, and adequately confined in its reach, to withstand due process scrutiny. The statute meets the controlling standards for overcoming vagueness which are set out in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), in that persons of ordinary intelligence in contemporary Florida[5] could not reasonably conclude that unwritten bet-taking does not violate a law which prohibits "book"-making. Appellants' overbreadth challenge, which rests on the premise that a writing or recording of wagers is indispensible, necessarily fails as well.[6]

2. Appellants argue that the wiretap affidavit furnished by undercover officials[7] did not include a "full and complete statement" that other investigative procedures had been tried or appeared unlikely to succeed, as required by Section 934.09(1)(c), Florida Statutes (1975).[8] This challenge is *604 focused on paragraph 7 of each affidavit,[9] which states:

The normal investigation procedures have been tried by your Above named Affiants in that information has been gained from reliable and trustworthy Confidential Informants and other law enforcement agencies; surveillances have been repeadly [sic] attempted on the aforesaid participants without success because of their guile, organized manner of operation, fear of apprehension from illegal gambling and bookmaking activities, and the fact that the aforesaid GUY A. ZONA is known by your affiants to only conduct illegal gambling and bookmaking with club members of the Countryside Country Club and with no other person who your Affiants have been able to identify and interview. All of the listed confidential Informants have stated that they are unable to introduce a law enforcement officer into the operation of GUY A. ZONA because of ZONA'S method of dealing with only club members from the Countryside Country Club and the established use of codes when conducting gambling and bookmaking activity over the telephone. Further, contact with the above Confidential Informants indicate [sic] that use of law enforcement officers or other Confidential Informants might cause physical danger to the persons involved as well as prematurely disclosing the instant investigation so as to enable GUY A. ZONA, TONY LAST NAME UNKNOWN, and their confederates to elude apprehension and arrest for their illegal activities in violation of the laws of the state of Florida.

Appellants complain that this recitation sets out no factual predicate which would enable a court to determine why normal investigative procedures would be unsuccessful, except for general statements which characteristically apply in every bookmaking case. They also claim that the affidavit itself recognized an alternative investigative method which the state should have been required to pursue before it obtained a wiretap authorization — that is, acquisition of a club membership in order to deal directly with the suspected bookmakers.[10]

As to the factual predicate for the affidavit, we agree with appellants that a statement of the underlying circumstances is essential[11] and that a mere "boilerplate recitation of the difficulties of gathering usable evidence in bookmaking prosecutions is not a sufficient basis for granting a wiretap order."[12]

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367 So. 2d 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zuppardi-v-state-fla-1978.