Adams v. Murphy

Citation: 394 So. 2d 411Docket: 57451

Court: Supreme Court of Florida; January 28, 1981; Florida; State Supreme Court

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A question of Florida law regarding the existence of the offense of attempted perjury is before the Supreme Court of Florida following a certification from the Fifth Circuit Court of Appeals. Don A. Adams was charged with perjury for allegedly lying to a grand jury and was convicted of attempted perjury after the trial court instructed the jury on that charge. His conviction was affirmed on appeal, but later, the Florida Supreme Court found it lacked jurisdiction to review the case. A habeas corpus petition was subsequently denied, but the U.S. District Court granted relief to Adams, ruling that his conviction for attempted perjury, an offense not recognized under Florida law, violated due process.

The certified question posed is whether attempted perjury is a criminal offense in Florida. The relevant statute, section 837.02, outlines perjury but does not explicitly define attempted perjury. Florida common law defines perjury as the willful giving of false testimony under oath on a material matter. State officials argue that, logically, attempted perjury exists, defined by specific intent to commit the crime and an overt act toward its commission. The court recognizes that an attempt requires both elements, as established in previous Florida case law.

Intent and action must align such that, absent interference, they would lead to the completed crime. Florida's general attempt statute states that individuals attempting to commit a crime, who perform an act toward that crime yet fail or are prevented from completing it, may be punished if no specific punishment exists for the attempt (776.04, Fla. Stat. 1973). State officials argue that proof of intent and overt acts, such as false testimony, can establish attempted perjury even if the crime is incomplete due to missing elements. However, certain crimes do not recognize attempts as offenses, exemplified by case law: for instance, attempted possession of burglary tools and attempted uttering of a forged instrument are not crimes. In King v. State, the court ruled that if a crime itself constitutes an attempt, one cannot attempt that crime, affirming the refusal to instruct the jury on attempt was correct. This principle was echoed in Hutchinson v. State, which examined whether solicitation could be treated as an attempted conspiracy. The court emphasized the legislature's intent and noted that the general attempt statute does not apply to more remote actions like solicitation and conspiracy, which are not direct efforts toward committing a crime. Florida courts have consistently defined attempts as comprising two elements: specific intent to commit the crime and a separate overt act toward its commission.

The Florida case Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976) addresses the issue of whether an attempt to commit a crime, specifically perjury, can be prosecuted. The court concludes that making a false report is analogous to uttering a forged instrument, where an attempt can be sufficient for conviction. However, it distinguishes this from the attempted crime of perjury, arguing that the crime must be fully proven by a willful false statement, not by an attempt. The reasoning follows that the failure to complete a crime due to external factors (like the authority of the person administering an oath) does not equate to an attempt as defined in common law. Therefore, the court finds no basis for a crime of attempted perjury, answering the certified question in the negative. The opinion concludes with instructions for the case file to be returned to the United States Court of Appeals for the Fifth Circuit. Justices concur and dissent, with specific opinions on the necessity for a new trial rather than discharging the defendant.

The defendant's counsel prompted the trial court to consider attempted perjury as a lesser included offense, and the defendant claims entitlement to discharge based on the judge's acceptance of this request without government objection. Justice Alderman argues that allowing a defendant to create a problem and then benefit from it undermines justice; therefore, the defendant should only be granted a new trial, not a discharge. Alderman asserts that attempted perjury exists when there is intent and an overt act of false testimony, even if essential elements like materiality are absent. The majority's conclusion that a complete perjury charge negates the possibility of attempted perjury is deemed inconsistent. Alderman contends that if any elements of perjury are lacking, yet the defendant has shown intent and taken physical steps toward committing perjury, then attempted perjury has occurred. Alderman would affirm this interpretation, with Justices England and McDonald concurring.