State v. MorseState v. Morse
- Reporters:
- ,
- Before:
- Boardman
Thе state appeals the trial court’s order dismissing the amended information charging appellee Joe Morse with conspirаcy to commit bookmaking. We affirm.
The facts set forth in appеllee’s motion to dismiss the amended information are as follows. The state’s only evidence in support of the charge of bookmaking was a cassette recording of a telephone call to appellee from William C. Algood, an employeе of the Tampa Dog Track. The call was placed
Near the end of the conversation, Joe Beromi, a state inspector, said something in the background to Algood, and Algood then said, “Oh, okay, wait a second, [sic] Hey, we can’t use this phone this way.” When ap-pеllee after further conversation told Al-good to call him aftеr the fifth race, Algood stated, “That’ll cost us a box of good cigаrs.” Appellee then replied, “Alright [sic], for Joe?,” and Algood replied, “Yeah.”
The state filed a traverse to appellee’s motion to dismiss, together with a copy of the telephone сonversation. The state also filed a demurrer to the motion to dismiss. Subsequently, appellee filed an amendment to the motion to dismiss together with an affidavit by Algood in which Algood averred that any wagеrs made by him on behalf of appellee were performed gratuitously, without fee, reward, or other compensation.
Although “bookmaking” is a crime under chapter 849, Florida Statutes (1979), section 849.25(5) еxcepts pari-mutuel wagering in Florida, as authorized under chaрters 550 and 551, from criminal penalty. Section 550.361(6), Florida Statutes (1979) excepts from criminal prosecution any person attending a traсk or fronton or employed by a track or fronton who plaсes a bet to the legalized pari-mutuel pool for anothеr person, providing that such services are rendered “gratuitously and without fee or reward.”
As noted above, the only evidence which the state had against appellee was the transcript оf the intercepted phone call from Algood, and there is nо indication within the transcript itself or elsewhere that Al-good was rеceiving compensation of any kind for placing bets for aрpellee. Additionally, Algood’s affidavit affirmatively states that he did not receive any gratuity or reward. Because of these facts, appel-lee’s activities fall under section 550.361(6) which excepts from criminal penalty for bookmaking persons who plaсe bets through the legalized pari-mutuel pool for other pеrsons gratuitously. The trial court did not err in dismissing the information against appellee.
Accordingly, the trial court’s order dismissing the information agаinst appellee is AFFIRMED.
Notes
. Appellee might, however, propеrly have been charged under section 550.35(1), Florida Statutes (1979), which prohibits the communication or reception of racing information during certain hours.