Florida/Georgia Personal Injury & Workers Compensation

...engage[ ] in misleading conduct toward another person ... with intent to cause or induce any person to ... [h]inder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense." Fla. Stat. 914.22(1)(e). 26 to support their convictions for violating § 1512(b)(3)....

...engage[] in misleading conduct toward another person . . . with intent to cause or induce any person to . . . [h]inder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense.” Fla. Stat. 914.22(1)(e). 42 regarding this issue misled the jury and erroneously resulted in their convictions. This federal nexus argument implicates the specific intent or mens rea requirements for violating § 1512(b)(3), which we must analyze in the proper statutory context....

...Fishman, P.A., Fort Lauderdale, for appellee. KOGAN, Justice. We have on appeal State v. Cohen, 545 So.2d 894 (Fla. 4th DCA 1989), which affirmed a trial court order declaring unconstitutional a portion of the witness tampering statute. Id. at 898 (striking §§ 914.22(1)(a) & 914.22(3), Fla....

...ker's reliance on a writing or recording that was false, forged, altered or otherwise unauthentic [4] ; and (4) knowingly used a trick, scheme or device with intent to mislead Hooker. [5] *51 On every count, the information alleged a violation of subsection 914.22(1)(a), which makes it a crime to engage in any of these activities when they are intended to "[i]nfluence the testimony of any person in an official proceeding." § 914.22(1)(a), Fla. Stat. (1985) (emphasis added). In pretrial proceedings, Cohen's attorney filed a motion to dismiss the information on grounds that sections 914.21 and 914.22 were unconstitutional. Granting the motion, the trial court stated in pertinent part: Neither Florida Statute 914.21 nor Florida Statute 914.22 defines the phrase "influence the testimony of any person." Specifically, the statute leaves ambiguous whether it is criminal to influence to testify falsely, or truthfully, or both. The only assistance seems to appear in Florida Statute 914.22(3) which states that if the defendant's intent was to influence to testify truthfully then he has the burden of proof to establish this fact which is an affirmative defense....

...ement of the crime. Cohen, 545 So.2d at 895. In addition, the trial court found the statute unconstitutionally vague and overbroad to the extent that it criminalized innocent speech and conduct. On appeal, the Fourth District agreed that subsections 914.22(1)(a) and (3) were unconstitutional for overbreadth and improper burden shifting, and it affirmed....

...a Constitution, and are applicable to the present case. Here, both the trial and district courts concluded that a portion of the witness-tampering statute impermissibly shifted the burden of proof to the defendant. This allegedly occurred because subsection 914.22(3) establishes an "affirmative defense" that the defendant must prove by a preponderance of the evidence....

...This "affirmative defense" consists of two elements, both of which must be proven: (a) that the defendant engaged solely in lawful conduct, and (b) that the defendant's sole intention was to encourage, induce or cause the other person to testify truthfully. § 914.22(3), Fla....

...tion. An affirmative defense does not concern itself with the elements *52 of the offense at all; it concedes them. In effect, an affirmative defense says, "Yes, I did it, but I had a good reason." The "affirmative defense" purportedly created by subsection 914.22(3) does not meet this definition. To avail themselves of this "affirmative defense," defendants must prove two things: the conduct was entirely lawful, and the sole purpose of this conduct was to induce truthful testimony. See § 914.22(3), Fla....

...effect says, "I did not do it." Moreover, it is highly problematic whether a defendant ever could prove the first prong of this "affirmative defense." This is because the statute requires proof that "the conduct consisted solely of lawful conduct." § 914.22(3), Fla. Stat. (1985). However, section 914.22(1)(a) already has made it a crime to "[i]nfluence the testimony of any person in an official proceeding" (emphasis added). How can a defendant prove the conduct was lawful if it already has been rendered unlawful by section 914.22(1)(a)? Thus, under the strict and literal construction required of criminal statutes in this state, Ex parte Bailey, 39 Fla....

...197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977), we conclude as a matter of Florida law that this statute has failed to create a genuine affirmative defense. Moreover, the apparent attempt to use this "affirmative defense" to narrow the language of subsection 914.22(1)(a) is done in such a way as to impermissibly shift the burden of proof to the defendant and quite possibly to render this burden of proof impossible to meet. The statute criminalizes any attempt to "influence" a potential witness and then requires the defendant to prove the "influence" was not criminal. This is a catch-22. In light of the foregoing analysis, we also must conclude that subsection 914.22(1)(a) is unconstitutionally vague because it fails to distinguish lawful from unlawful conduct in a way adequate to give notice as to the requirements of the law....

...Thus, paragraph (a) of subsection (1) is facially vague. Here, we cannot determine whether the legislature in subsection (1), paragraph (a), intended to criminalize efforts to influence only untruthful, or both truthful and untruthful, testimony. [6] *53 Accordingly, subsection 914.22(3), Florida Statutes (1985), and paragraph (a) of subsection (1) of section 914.22, Florida Statutes (1985), are unconstitutional....

...It is so ordered. SHAW, C.J., and EHRLICH, BARKETT and GRIMES, JJ., concur. OVERTON, J., dissents with an opinion, in which McDONALD, J., concurs. McDONALD, J., dissents with an opinion. OVERTON, Justice, dissenting. I find that we can reasonably construe section 914.22(1)(a) and (3), Florida Statutes (1985), as constitutional....

...alize efforts to influence untruthful testimony, then the statute would be constitutional. However, the majority finds the statute vague because it also can be construed to apply to truthful statements. I find that, when the legislature provided, in section 914.22(3), that a defendant could assert as a defense to this action that his or her "sole intention was to encourage, induce, or cause the other person to testify truthfully," it established that subsection (1)(a) was intended to punish only...

...ial proceeding to testify falsely. In my view, this is a reasonable and proper interpretation of the statute and one that would allow us to uphold its constitutionality. McDONALD, J., concurs. McDONALD, Justice, dissenting. I disagree that either subsection 914.22(1)(a) or subsection 914.22(3), Florida Statutes (1985), is unconstitutional. The purpose of section 914.22, generally referred to as the witness/victim tampering statute, is to prohibit people from influencing the testimony of witnesses, victims, or informants by threats or tricks....

...It is entirely appropriate to enact legislation to protect witnesses, victims, and informants from such activity. The crime is witness tampering, for any reason. The fact that the legislature has allowed an exception to the criminality of such conduct upon presentation and proof of the factors specified in subsection 914.22(3) should not impair the statute in whole or in part....

...In Kalevas the court distinguished between the elements of the offense which must be proven beyond a reasonable doubt and the elements of the affirmative defense which are independent facts, proof of which by a preponderance of the evidence is sufficient to avoid criminal liability. Neither section 1512(c) nor subsection 914.22(1)(a) allows the government to prevail without proving each element of the offense *54 beyond a reasonable doubt....

...The defendant need not present an affirmative defense. The legislature has afforded defendants the opportunity to prove such additional facts as would demonstrate that the allegedly illegal conduct was, in fact, lawful. The state must prove the illegal conduct and subsection 914.22(3) does not change that requirement. I fail to see where the statute is vague and I believe the statute, and all of its parts, stands constitutional muster and should be left undisturbed. NOTES [1] In pertinent part, subsections 914.22(1)(a) & (3), Florida Statutes (1985), provide: (1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benef...

...Quite obviously, nonharassment of the "victim," whoever that might have been, was not a condition of the plea agreement. Had harassment occurred in fact, the State was free to charge the defendant with tampering with or retaliation against a witness. See § 914.22-23, Fla....

...ffidavit perjury in violation of Florida Statutes § 322.33, perjury in official proceedings and by contradictory statements in violation of Florida Statues §§ 837.02 and 837.021, (3) tampering with witnesses *1259 in violation of Florida Statutes § 914.22, (4) tampering with or fabricating physical evidence in violation of Florida Statutes § 918.13, (5) mail and wire fraud in violation of 18 U.S.C....

...pecifically. As to witness tampering and retaliation, Anthony's allegation regarding 18 U.S.C. §§ 1512-13 is irrelevant to their Florida RICO action, in that said federal statute is not listed in Section 772.102(1)(a)-(b). With regard to Fla.Stat. § 914.22 and .23, there is insufficient record evidence to establish those crimes....

...etted the concealment of criminal conduct, aided and abetted the furtherance of the criminal conduct, failed to report the criminal conduct of Defendant FANTI-GRASSI and other deputies, and, in violation of 18 U.S.C. § 1512 (3)(b) and § 918.13 and § 914.22, Florida Statutes, withheld, concealed and/or destroyed evidence and records pertaining to said illegal conduct against Plaintiff and others, obstructed justice, obstructed a criminal investigation, evaded criminal and/or civil prosecution...

...See id.; see also § 90.803(2), Fla. Stat. (2007). The appellant's argument that the trial court gave the jury an erroneous instruction on the charge of tampering with a victim is well-taken. The court improperly combined the elements of subsections (e) and (a) of section 914.22(1), Florida Statutes (2005)....

...Cramer, 383 So.2d 254, 254 (Fla. 2d DCA), rev. denied, 388 So.2d 1111 (Fla. 1980); State v. Savarino, 381 So.2d 734, 735 (Fla. 2d DCA 1980). [3] We agree with the state's observation that section 914.23 does not address the evil of tampering with a witness as does section 914.22, Florida Statutes (1991)....

...s testimony. This conclusion is strengthened by the fact that the legislature separately addressed the problems of tampering and retaliation when it enacted these statutes. See Ch. 84-363, §§ 14, 15, Laws of Fla. Prior to the enactment of sections 914.22 and 914.23, section 918.14, Florida Statutes (1983), which dealt primarily with tampering with a witness, also contained some provisions protecting a witness from retaliation....

...ded to intimidate Plaintiffs from revealing information to the Florida DABT investigators or to punish Plaintiffs for any information they may have already revealed. Intimidating witnesses violates 18 U.S.C. §§ 1512 and 1513 and Florida Statutes §§ 914.22 and 914.23....

...Second, Defendant claims that Plaintiffs do not allege a pattern of criminal activity. Florida's RICO statute specifies certain acts which qualify as predicate acts. The statute lists violations of "Chapter 817, relating to fraudulent practices ... Section 914.22 or s....

...After consideration of the motion and the Division's response, we conclude that the acts set forth in Count V of the federal indictment and in the factual basis to the plea agreement satisfy the elements of tampering with a witness or informant pursuant to section 914.22, Florida Statutes, not conspiracy to tamper with a witness as asserted by appellant....

...ch it purportedly shifted the burden of proof to the accused. The court looked to State v. Cohen, 568 So.2d 49 (Fla. 1990), in which the Supreme Court of Florida found a portion of the witness tampering statute unconstitutional. The court found that section 914.22(3), Florida Statutes (1985), impermissibly shifted the burden of proof to the defendant by creating an "affirmative defense" for the defendant to prove by a preponderance of the evidence....

...Considering the leniency that must be afforded to pro se litigants, and the fact this appeal is before us for limited review pursuant to Fla.R.App.P. 9.140(g), we will not consider this defect fatal to Bell's motion. Instead, we proceed under the assumption that Bell was charged under section 914.22(1)(a), which was declared unconstitutional in Cohen....

...[1] Condition Five The trial court first found that Miller violated condition five of his probation by committing the new criminal offense of tampering with a witness. On appeal, Miller argues that there was no competent nonhearsay evidence to establish that he tampered with a witness. We agree. Section 914.22(1)(f), Florida Statutes (2005), defines tampering with a witness as using intimidation or threats against another person with the intent to cause or induce the other person to "[t]estify untruthfully in an official investigation or an official proceeding," or attempting to do so. Section 914.22(1)(e) prohibits the same conduct when done with the intent to "[h]inder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense....

...else, you'll rot in jail," or "Hey all you girls, don't say anything because if you do you'll sit there and rot." In response, the dancers became quiet. Thereupon, Gill was arrested and charged with seven counts of witness tampering in violation of section 914.22, Florida Statutes (1991)....

..."a pimp telling a prostitute don't talk." Thereafter, a jury found Gill guilty of all seven counts of witness tampering. After he was adjudicated guilty and sentenced, Gill filed a timely notice of appeal. The information in the instant case tracks section 914.22(1)(e) almost verbatim. Section 914.22(1)(e) provides: (1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to: ... . (e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense ... is guilty of a felony of the third degree. To establish a violation of section 914.22(1)(e), the state must prove that the accused specifically intended to hinder, delay, or prevent the communication of information regarding a crime to a law enforcement officer. Section 914.22(1)(e); Overton v....

...Gen., Tallahassee, and Jim Easley, Asst. Atty. Gen., Daytona Beach, for appellant. Garrick N. Fox of Fox and Brewer, P.A., Orlando, for appellee. COBB, Judge. Appellee, Thomas Dale Atkinson, was charged with tampering with a witness in violation of section 914.22(1), Florida Statutes (Supp....

...The defendant was abusive, both physically and verbally, to Edwin Elmore; b. The defendant threatened Robert Noble about testifying to the aforementioned battery and intimidation of Edwin Elmore. The trial court granted the motion to dismiss, and this appeal ensued. Section 914.22(1), Florida Statutes (Supp....

...In the Committee’s proposals for new instruction 21.10 (Tampering With a Witness) and new instruction 21.11 (Harassing a Witness), the statutory phrase “or employee” appears to have been inadvertently omitted from the language which purportedly tracks section 914.22(6)(b), Florida Statutes (2012)....

...Otherwise, the defendant is guilty of a third degree felony. Therefore, a specific finding of bodily injury caused by the defendant is necessary when appropriate. This instruction was adopted in 2013. 21.10 TAMPERING WITH A [WITNESS] [VICTIM] [INFORMANT] § 914.22(1), Fla....

...inal offense] [misdemeanor] [third degree felony] [second degree felony] [first degree felony [punishable by a term of years not exceeding life]] [life felony] [capital felony] [offense of indeterminable degree]. Give if requested and if applicable. § 914.22(5) (a), Fla....

...A proceeding before the Commission on Ethics. “Physical force” means physical action against another and includes confinement. Lesser Included Offense The degree of this crime depends on the severity of the underlying offense that is the subject of the tampering. See § 914.22(2), Fla. Stat. Comment This instruction was adopted in 2013. 21.11 HARASSING A [WITNESS] [VICTIM] [INFORMANT] § 914.22(3), Fla....

...A proceeding before a federal agency that is authorized by law; or d. A proceeding before the Commission on Ethics. Lesser Included Offense The degree of this crime depends on the severity of the underlying offense that is the subject of the harassment. See § 914.22(4), Fla....

...delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding.... § 914.22(l)(e), Fla....

...delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding.... § 914.22(l)(e), Fla....

...olence, but without more, does not establish the charge of escape. III. WITNESS TAMPERING Pollen's conviction for witness tampering rested on Mancilla's testimony that Pollen said he was coming back to see him and in fact came back a few days later. Section 914.22(1)(a), Florida Statutes (2002) prohibits intimidation, physical force, or threats with "intent to cause or induce any person to: (a) Withhold testimony......

WALLACE, Judge. Antoine McCloud challenges his judgment and sentence for tampering with a witness, a violation of section 914.22(l)(e), Florida Statutes (2014)....

...attempting to contact law enforcement during the commission of a crime. He also contends that his written judgment contains numerous clerical errors and that he is entitled to a new sentencing hearing based on a scoresheet error. Because we find that section 914.22(l)(e) does not require the State to prove that a witness was attempting to contact law enforcement during the time of the underlying criminal incident, we affirm Mr....

...1 This appeal followed. II. DISCUSSION Mr. McCloud raises two issues on appeal. First, Mr. McCloud argues that the trial court erred in denying his motion for a judgment of acquittal because the State failed to present sufficient evidence to support a conviction under section 914.22(l)(e)....

...The State concedes that the judgment contains scrivener’s errors and that Mr. McCloud is entitled to a new sentencing hearing. We shall address each issue in turn. The first issue concerns the trial court’s denial of Mr. McCloud’s motion for judgment of acquittal and the interpretation of section 914.22(l)(e)....

...We review de novo both the denial of a motion for judgment of acquittal and an issue of statutory interpretation. Delgado-George v. State, 125 So.3d 1031, 1033 (Fla. 2d DCA 2013). As with all issues of statutory interpretation, we begin with the text of the statute. Section 914.22 provides, in pertinent part, that a person commits the crime of tampering with a witness, victim, or informant when that person: (1) ......

...o another person, with intent to cause or induce any person to: [[Image here]] .(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense .... § 914.22(l)(e)....

...tempted act, “the accused specifically intended to hinder, delay, or prevent the communication of information regarding a crime to a law enforcement officer.” Gill v. State, 622 So.2d 92, 93 (Fla. 2d DCA 1993). However, Mr. McCloud contends that section 914.22(l)(e) also requires the State to present evidence showing that the witness was attempting to contact law enforcement during the commission or possible commission of the criminal offense....

...o contact law enforcement during the time of the incident, evidence that the defendant broke her phone was not sufficient to prove witness tampering. Id. at 832 . Our sister court, however, failed to provide any explanation for its interpretation of section 914.22(l)(e)....

...tempting to contact law enforcement during the altercation.” Id. Notably, in Longwell, the State conceded “that the evidence presented did not establish a prima facie case of guilt as to the tampering charge.” Id. Based on our plain reading of section 914.22(l)(e), we disagree with the First District’s interpretation of the statute in McCray, Thompson, and Longwell. Section 914.22(l)(e) does not require the State to show that a witness, victim, or informant “was attempting to contact law *846 enforcement during the time of the incident.” McCray, 171 So.3d at 832 (emphasis added). Such a requirement would add another element to a crime that is otherwise clearly defined. See § 914.22(l)(e); Fla....

...Rather, we find that the statute requires the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement “relating to [not during] the commission or possible commission of an offense.” 2 § 914.22(l)(e) (emphasis added)....

...Such an interpretation not only severely restricts the statute’s applicability, but it also contravenes the plain meaning of the statute and could lead to absurd results. 3 Therefore, we disagree with the First District’s interpretation and conclude that section 914.22(l)(e) does not require the State to present evidence showing that the witness or the victim “was attempting to contact law enforcement during the time of the incident.” McCray, 171 So.3d at 832 . In this case, based on our interpretation of section 914.22(l)(e) and viewing the facts adduced at trial in a light most favorable to the State, we find that the State presented sufficient evidence to sustain Mr....

...4 *847 Upon remand, the trial court shall correct the judgment to indicate that Mr. .McCloud was tried and found guilty by a<jury. The trial court shall also correct the judgment to reflect that Mr. McCloud was convicted of tampering with a witness, a third-degree felony. See § 914.22(2)(aj (stating that when the underlying convictions are misdemeanor offenses, witness' tampering is a third-degree felony)....

...We also vacate the sentence for witness tampering and remand for re-sentencing on that charge and for the correction of the judgment. Affirmed in part, reversed in' part; conflict certified. •LaROSE, C.J., and KHOUZAM, J., Concur. . Mr. McCloud does not challenge his convictions for battery and assault. . Section 914.22(1) lists four different acts that an accused might take against a victim, witness, or informant that could constitute witness tampering: (1) the use or attempted use of intimidation or physical force; (2) a threat or attempted threat; (3) misleading conduct; or (4) an offer of pecuniary benefit or gain....

...For instance, a defendant who threatens to kill a witness or victim if they "rat” on him could not be found guilty of witness tampering as long as that witness or victim did not attempt to contact the police during the commission of the underlying crime. In other words, under the First District’s interpretation of section 914.22(l)(e), a witness or victim has a small window of time to contact law enforcement....

...investigators that Matthews was lying. Based on his conversation with Matthews, Carswell was charged with the misdemeanor of tampering with a witness. He pleaded nolo contendere to the misdemeanor charge of tampering with a witness, in violation of section 914.22(2)(a), Florida Statutes (Supp....

...enforcement. Appellee provided- his address, posted bond; and was released on November 7, 2014. ■ On February 6, 2015, ninety-two days after his arrest, the State filed an information charging appellee with tampering with a witness in violation of section 914.22, Florida Statutes (2014), a felony, and misdemeanor battery, on the-basis of-the November incident....

...Richard John McGraw appeals from an order of the Department of State, Division of Licensing ("Department") revoking his Class C private investigator's license. We affirm. Appellant was found guilty of the felony offense of tampering with a witness under Section 914.22(1), Florida Statutes....

...nter such other order as it deems just under the circumstances. Rule 3.220(n)(2) provides that upon finding a “[w]illful violation,” the court may impose sanctions such as, but not limited to, contempt proceedings and the assessment of costs. Section 914.22, Florida Statutes (2011), sets out criminal sanctions for interfering with a witness’s appearance or testimony....

tampering in violation of section 914.22(1) of the Florida Statutes. Section 914.22(1)(a), Florida Statutes

...t the testimony of any person in an official proceeding; (2) cause or induce any person to— (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; .... 18 U.S.C. § 1512 . 4 Similarly, Florida Statute § 914.22 entitled “Tampering with or harassing a witness, victim, or informant; penalties”, provides in relevant part, 5 *1293 (1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or...

...ry benefit or gain to another person, with intent to cause or induce any person to: .... (f) Testify untruthfully in an official investigation or an official proceeding, commits the crime of tampering with a witness, victim, or informant. Fla. Stat. § 914.22 (Westlaw 2008)....

...he witness (2) with the intent to induce the witness to “withhold testimony,” from an official proceeding. 18 U.S.C. § 1512 . Substantially the same elements must be established to *1297 prove witness tampering under Florida law. See Fla. Stat. § 914.22 (Westlaw 2008)....

...ness tampering statute of 18 U.S.C. § 1512 . . As to the allegation that NCMIC tampered with a witness in violation of Florida Law, the Plaintiffs cite to Florida Statute § 918.14 (DE # 294 at 2). However, Florida Statute § 918.14 was replaced by § 914.22 in 1984, by the Florida Legislature....

...2000). As of October 2017, the courts had not determined if a withhold of adjudication counted as a conviction. This instruction was adopted in 2018. 21.10 TAMPERING WITH A [WITNESS] [VICTIM] [INFORMANT] § 914.22(1), Fla....

...[first degree felony [punishable by a term of years not exceeding life]] [life felony] - 13 -  [capital felony] [offense of indeterminable degree]. Give if requested and if applicable. § 914.22(5)(a), Fla. Stat. The State does not have to prove that an official proceeding was pending or about to be instituted at the time of this alleged offense. § 914.22(5)(b), Fla. Stat. The State does not have to prove that the testimony or the record, document, or other thing was admissible in evidence [or free from a claim of privilege]. § 914.22(6)(a), Fla....

...Stat. The State does not have to prove that the defendant knew or should have known that the official proceeding before a judge, court, grand jury, or government agency, was before a judge or court of the state, a state or local grand jury, or a state agency. § 914.22(6)(b), Fla....

...A proceeding before the Commission on Ethics. “Physical force” means physical action against another and includes confinement. Lesser Included Offense The degree of this crime depends on the severity of the underlying offense that is the subject of the tampering. See § 914.22(2), Fla....

...as a level nine offense, arguing that it should have been classified as a level four offense. This concession was incorrect because witness tampering is a level four offense only when the relevant investigation or proceeding is a third-degree felony. See § 914.22, Fla....

...a witness as a level four offense). Here, because Trusty’s tampering conviction relates to a proceeding or investigation for a higher degree offense—second-degree murder—it is classified in accordance with section 921.0023, Florida Statutes. See §§914.22, 921.0022, 921.0023, Fla....

...In claim nine, Murray alleged that trial counsel was ineffective for failing to object to the witness tampering jury instruction. Murray alleged the trial court instructed the jury on acts not alleged in the Information. Specifically, Murray alleged that he was charged with a violation of subsection 914.22(1)(a), Florida Statutes, but the trial court instructed the jury on subsections 914.22(1)(a)-(f), Florida Statutes....

...2d DCA 2003). It is improper to instruct on subsections of the witness tampering statute that are not charged. See Casica v. State, 24 So.3d 1236, 1241 (Fla. 4th DCA 2009) (holding it reversible error to instruct the jury on subsections (a) and (e) of section 914.22(1), Florida Statutes (2005), where defendant was charged with violating only subsection (e))....

...rt of Appeal in McCray v. State , 171 So.3d 831 (Fla. 1st DCA 2015). McCloud , 224 So.3d at 847 . We have jurisdiction. *913 See art. V, § 3(b)(4), Fla. Const. This conflict concerns the proper interpretation of Florida's witness tampering statute: section 914.22, Florida Statutes (2014)....

...in McCray . Id. The Second District rejected McCray , certified conflict with the decision, and affirmed McCloud's conviction for witness tampering. Id. at 847 . 1 This review follows. ANALYSIS The issue central to the certified conflict is whether section 914.22(1)(e), Florida Statutes, requires the State to demonstrate that a witness attempted to contact law enforcement to prove its case in chief on witness tampering....

...If the statute is "clear and unambiguous," then this Court does not look beyond the plain language or employ the rules of construction to determine legislative intent-it simply applies the law. *915 Gaulden v. State , 195 So.3d 1123 , 1125 (Fla. 2016) (quoting Borden v. E.-Eur. Ins. Co. , 921 So.2d 587 , 595 (Fla. 2006) ). 2 Section 914.22(1)(e), Florida Statutes In pertinent part, the witness tampering statute is clear and unambiguous: (1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in mislead...

....... (e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense .... .... commits the crime of tampering with a witness, victim, or informant. § 914.22(1)(e), Fla....

...lude a witness's attempt to contact law enforcement as an *916 element of the crime, id. at 845-46 ; whereas the First District, on nearly identical facts, came to the opposite conclusion in McCray , 171 So.3d at 832 . Based on the plain language of section 914.22(1)(e), Florida Statutes -which is clear and unambiguous-we conclude that the First District misread the statute and improperly added an element to the offense in contravention of the plain language. Nothing in the plain language of section 914.22(1)(e) indicates that the elements of witness tampering include a witness's attempt to contact law enforcement, either during or after the commission of the offense. See § 914.22(1)(e), Fla....

...Instead of following this basic rule, the First District redefined the crime of witness tampering, adding an additional element. See McCray , 171 So.3d at 832 . That was error. McCloud attempts to salvage the First District's interpretation by looking to section 914.22's "knowingly" requirement for support....

...Yet McCloud misreads the statute by rearranging its words. The Legislature did not define witness tampering with "knowingly" modifying the prohibited result of hindering, delaying, or preventing communication with law enforcement, as McCloud argues. The plain language of section 914.22(1)(e) makes clear that "knowingly" modifies acts of intimidation, threats, or physical force (among others). § 914.22(1)(e), Fla....

...State , 684 So.2d 720 , 722 n.5 (Fla. 1996). Because witness tampering is a specific intent crime, however, the statute separately requires that the knowing act be done "with intent to cause or induce" a witness to "[h]inder, delay, or prevent the communication" with law enforcement. § 914.22(1)(e), Fla. Stat. 4 Clearly, the knowledge requirement does not apply to a defendant's intent to bring about the prohibited result of obstructing justice because those are two separate elements of the crime. By misreading section 914.22(1)(e), Florida Statutes, McCloud attempts *917 to obfuscate the fact that it was his actions and intent to tamper-not the victim's or older daughter's responses-which were determinative here....

...e statute's plain language. The Certified Conflict In McCray , the First District addressed a similar fact pattern where the defendant broke the victim's phone during the commission of a battery. 171 So.3d at 832 . Interpreting the plain language of section 914.22, the court stated that "it [wa]s necessary to present evidence that the victim was attempting to contact law enforcement during the time of the incident to support a conviction under this statute." Id....

...ting to contact law enforcement during the altercation, there is insufficient evidence as to an essential element of the crime. Id. Nowhere in the First District's analysis is there any explanation for reading an additional element of the crime into section 914.22....

...of communication-there was no evidence of the defendant committing an act with the specific intent to hinder, prevent, or delay the victim's communication with law enforcement; therefore, the defendant did not violate the statute. See id. ; see also § 914.22(1)(e), Fla....

...5 *918 Conversely, the Second District below rejected the First District's precedent. McCloud , 224 So.3d at 845 -46 . According to the Second District, that interpretation "add[ed] another element to a crime that is otherwise clearly defined." Id. at 846 . Instead, the district court held that the plain language of section 914.22(1)(e)"requires the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement ' relating to [not during] the commission or possible commission of an offense.' " Id. (alteration in original) (quoting § 914.22(1)(e), Fla....

...Based on that evidence, the district court concluded that McCloud "knowingly used physical force, intimidation, or a threat with the intent to hinder or prevent a communication by either the victim or the older daughter to law enforcement regarding the assault and battery." Id. at 846 ; see § 914.22(1)(e) Fla....

...Warner v. City of Boca Raton , 887 So.2d 1023 , 1033 n.9 (Fla. 2004) ("[A] statutory provision should not be construed in such a way that it renders the statute meaningless or leads to absurd results."). Under the First District's interpretation of section 914.22, "a defendant could never be held criminally liable for witness tampering so long as the defendant ensures that the witness is unable to contact law enforcement at the time the threats are made." Taffe , 232 So.3d at 434 ....

...the First District's interpretation in McCray , the defendant did not commit witness tampering-despite his clear violation of the statute's plain language-because the victim did not attempt to contact law enforcement with a gun to his head. Compare § 914.22(1)(e), Fla....

...the plain language. E.g. , Streeter v. Sullivan , 509 So.2d 268 , 271 (Fla. 1987) ; State v. Egan , 287 So.2d 1 , 4 (Fla. 1973). And Florida judges are savvy enough to apply that simple, traditional rule like their predecessors have done for years. Section 914.22, Florida Statutes, applies to witnesses, victims, and informants alike....

...See Longwell [ 123 So.3d at 1198 ]. We, therefore, REVERSE the conviction for tampering with a victim or witness."). Moreover, the statute is not a general rule that changes based on the facts of the case, as the First District suggests, Frazier , 250 So.3d at 799 ; section 914.22, Florida Statutes, is a clear, unambiguous, and fixed definition of a crime that we must apply uniformly....

...Kelly, III, Woodville, for Appellant. Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. BENTON, J. On direct appeal, Charlie Williams contends his convictions for tampering with a witness, in violation of section 914.22(1), Florida Statutes (2012), should be reversed because the instructions the jury were given constituted fundamental error....

...Based on letters written to his girlfriend while he was in jail awaiting trial on the lewd or lascivious molestation charge, Mr. Williams was charged with and found guilty at the same trial on three counts of tampering with a witness, in violation of section 914.22(1), which provides, in part: A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward anothe...

...ying to call a ride to get home and let the public defender know I didn’t do anything to anyone bai also tell them you were up that hole nite (sic) and I didn’t do anything 2 Prior to 1991, subsection 914.22(1)(a), Florida Statutes, provided that it was unlawful for a person to offer pecuniary benefit or gain to “[i]nfluence the testimony of any person in an official investigation or official proceeding,” and...

...�that any offer of pecuniary benefit or gain was made with intent to induce his girlfriend or her daughter to testify “untruthfully” in an official proceeding. The jury had to find this fact beyond a reasonable doubt in order to convict under section 914.22(1)(f). See Blandon v. subsection 914.22(3), Florida Statutes, provided that it was “an affirmative defense ....

...tutional. The court noted the “statute criminalize[d] any attempt to ‘influence’ a potential witness and then require[d] the defendant to prove the ‘influence’ was not criminal. This is a catch-22.” Id. The court also concluded subsection 914.22(1)(a) was “unconstitutionally vague because it fail[ed] to distinguish lawful from unlawful conduct in a way adequate to give notice as to the requirements of the law.” Id. The court observed: [T]he language...

...Here, we cannot determine whether the legislature in subsection (1), paragraph (a), intended to criminalize efforts to influence only untruthful, or both truthful and untruthful, testimony. Id. In 1991, subsections 914.22(1)(a), and subsection 914.22(3), Florida Statutes, were repealed in response to Cohen. See Ch. 91-223, § 12, at 2167, Laws of Fla. In 1992, section 914.22(1)(f) was enacted in its present form, making it a crime to offer pecuniary benefit or gain to another person with intent to cause or induce any person to “[t]estify untruthfully in an official investigation or an official proceeding.” See Ch....

...That process was short-circuited in this case by the faulty instruction.” Haygood v. State, 109 So. 3d 735, 743 (Fla. 2013). Based on the failure to instruct the jury that the state had the burden to prove that he acted with the purpose of influencing his girlfriend or her daughter to testify “untruthfully,” § 914.22(1)(f), Florida Statutes (2012), Mr....

...r based on the failure to instruct the jury that the state was required to prove that he acted with the purpose to influence a person to testify “untruthfully.” The trial court determined the amended information charged violations of subsections 914.22(1)(a), (c), or (d), but did not charge a violation of subsection 914.22(1)(f), and that it was unnecessary for the instructions to include the word “untruthfully.” On this basis, the motion was denied. 9 (“Fundamental error occurs when a jury instruction contains an incorrect definition of a disputed element of a crime.”); Allen v....

Fla. R. App. P. 9.140(c)(1)(L)–(M). 2 See § 914.22(1), (2)(c), Fla. Stat. (2022).

...Fearful of Hager and in his presence, Bookstein called the assigned assistant state attorney and asked that the burglary charges be dismissed. After Hager left, Bookstein called the assistant state attorney back and advised him what had occurred. Hager was then charged with tampering with a witness in violation of section 914.22, Florida Statutes....

...Bookstein, as the victim, might have been called to testify at the sentencing hearing, Hager's threats might well have been found to have been intended to "cause or induce any person to ... withhold testimony... from an ... official proceeding." See section 914.22(1)(a), Florida Statutes....

...The State also appealed, challenging the trial court’s imposition of a downward-departure sentence. We consolidated the two appeals for all purposes. The first issue is a purely legal question of statutory interpretation: whether the witness-tampering statute, section 914.22(3) of the Florida Statutes, requires felony-level sentencing if the tampering occurred while a felony was charged and investigated, even if a jury later convicts of a lower-level crime....

...tampering offense with the level of the crime charged during the investigation. We also find that the trial court improperly entered a downward-departure sentence. We address the two issues in turn. 1. Witness-Tampering Statute. Florida’s witness-tampering statute, section 914.22(3), first defines the crime and then sets forth different levels of offense depending on the level of underlying crime being investigated or prosecuted, as follows: 914.22 Tampering with or harassing a witness, victim, or informant; penalties.— (1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduc...

...g involves a noncriminal investigation or proceeding. The State charged Appellant with burglary with a battery or assault, which is a first-degree felony punishable by life. § 810.02(2)(a), Fla. Stat. Therefore, the governing provision of section 914.22(3) was subsection (e), making the witness tampering a life felony because “the official investigation or official proceeding affected [the charge of burglary with battery or assault] involves the investigation or prosecution of a life or capital felony.” The statute is clear and unambiguous....

...nter such other order as it deems just under the circumstances. Rule 3.220(n)(2) provides that upon finding a “[w]illful violation,” the court may impose sanctions such as, but not limited to, contempt proceedings and the assessment of costs. Section 914.22, Florida Statutes (2011), sets out criminal sanctions for interfering with a witness’s appearance or testimony....

...89-01999) and an order striking his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 (Case No. 90-02075). We affirm. In October 1987 Mr. Meyer, a former attorney, 1 was convicted of tampering with a witness and conspiracy to tamper with a witness, in violation of sections 914.22(1)(a) and 777.04(3), Florida Statutes (1985)....

...In both the petition for writ of habeas corpus and the motion for postconviction relief, Mr. Meyer contends that his convictions and sentences for tampering with a witness and conspiracy to tamper with a witness should be set aside because .the statute under which he was convicted in 1987, section 914.22(l)(a), Florida Statutes (1985), has been held unconstitutional recently by this court and by the Fourth District Court of Appeal....

constitute the crime of tampering with a witness, see § 914.22, Fla.Stat. (1995), and would violate the conditions

...[Born-Suniaga] provided his address, posted bond, and was released on November 7, 2014. On February 6, 2015, ninety-two days after his arrest, the State filed an information charging [Born-Suniaga] with tampering with a witness in violation of section 914.22, Florida Statutes (2014), a felony, and misdemeanor battery, on the basis of the November incident....

...Article III, Section 1, Florida Constitution. Under our Constitution, the power to enact substantive laws is granted exclusively to the Florida Legislature. See art. III, § 1, Fla. Const.; see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975). Section 914.22, Florida Statutes (2014), creates the crime of tampering with a witness, making it a third- degree felony when, as here, it “involves the investigation or prosecution of a misdemeanor,” and section 775.15(2)(b), Florida Statutes...

PER CURIAM. The State of Florida appeals the dismissal of an information against the appellee, Richard Paul Chapman. Chapman was charged with witness tampering in violation of section 914.22, Florida Statutes (1987), by knowingly using or attempting to use intimidation or physical force with intent to influence testimony in an official proceeding. § 914.22(1)(a), Fla.Stat....

...We agree that subsection 914.-22(1)(a) is unconstitutionally vague because *356 it is not clear whether it proscribes conduct that influences another to testify truthfully, falsely or both. See State v. Cohen, 545 So.2d 894 (Fla. 4th DCA 1989). We also agree that subsection 914.22(3), unconstitutionally relieves the state of its burden to prove unlawful activity and intent beyond a reasonable doubt....

...s; nonetheless, to the extent those cases hold that in all cases of witness tampering, the State is required to prove that the victim was attempting to contact law enforcement at the time of the incident, we again certify conflict. Section 914.22(1), Florida Statutes (2015), defines the offense of tampering with a witness as follows: A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or...

...probation, parole, or release pending a judicial proceeding; . . . .... commits the crime of tampering with a witness, victim, or informant.1 Pursuant to the language of section 914.22(1)(e), the accused must have the intent to influence a witness's decision to contact law enforcement....

...In Longwell, there was no allegation that the appellant ever threatened to harm the victim or otherwise used intimidation or physical force to influence her decision to call law enforcement. The First District examined the language of section 914.22(1)(e) and held that there was insufficient evidence to prove the offense of witness tampering because the victim denied calling 911 and there was no evidence that the victim otherwise was attempting to contact law enforcement when her cell phone was broken....

...at 1198. The court noted that the State candidly indicated that the evidence "did not establish a prima facie case of guilt as to the tampering charge." Id. We agree with the conclusion in Longwell that the State in that case did not establish the offense of witness tampering as it is defined in section 914.22(1)(e), 1Section 914.22(1) lists other acts that constitute witness tampering; however, those acts have not been alleged in this case. -3- where there was no evidence that the appellant had the intent to influence the victim's decision to contact law enforcement....

...The appellant's act of taking the victim's cell phone and smashing it on the ground could not be construed as an attempt to "[h]inder, delay, or prevent the communication to a law enforcement officer" where there was no evidence that she ever tried or intended to communicate with a law enforcement officer. See § 914.22(1)(e)....

...uld have been to establish that the appellant's action in breaking the cell phones was an attempt to "[h]inder, delay, or prevent the communication to a law enforcement officer" because there was no other evidence establishing the requirements of section 914.22(1)(e). The case at bar is distinguishable from Longwell and McCray.2 Here, the State's traverse alleged that after beating the victim, Mr....

...to fall out. Id. 2Theopinion in Thompson v. State, 153 So. 3d 996 (Fla. 1st DCA 2015), did not discuss the facts presented at trial. -5-  In McCloud, this court held that section 914.22(1)(e) requires "the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement 'relating to [not during] the commission or possible commission of an offense.' " Id. at 846 (alteration in original) (quoting § 914.22(1)(e))....

...When the appellant struck the victim, he stated, “This is for telling on my cousin.” The prosecution relied upon this evidence to prove that the appellant battered the victim with the intent to cause or induce him to withhold evidence from an official investigation or official proceeding, contrary to section 914.22(1), Florida Statutes, a subsection of the witness tampering statute....

...mmission of an offense ... when said official investigation or official proceeding affected is the investigation or prosecution of a second degree felony, to wit: AGGRAVATED BATTERY ON A PREGNANT PERSON AND/OR ... FALSE IMPRISONMENT, in violation of s. 914.22(1) and s. 914.22(2)(c), Fla....

...State, 520 So.2d 260, 265 (Fla.1988)). The charge of tampering with a witness or victim is a “derivative offense,” in that the degree of the tampering offense is based upon, and increased one degree from, the underlying crime or crimes under investigation. Section 914.22(2), Florida Statutes (2010), provides the following penalties for tampering: (2) Tampering with a witness, victim, or informant is a: (a) Felony of the third degree, punishable as provided in s....

...5.087 FEL 2D.” Count Five alleged Pickett committed tampering with a witness or victim in the “investigation or prosecution of a second degree felony, to wit: aggravated battery on a pregnant person and/or ... false imprisonment, in violation of s. 914.22(1) and 9U.22(2)(c).” 6 (emphasis added). In the caption on the first page of the information, Count Five alleged “TAMPER/WIT/VIC/2D DEGREE FELONY S. 914.22(2)(c) FEL ID.” The allegation that Pickett was armed in the course of committing false imprisonment was not an essential element of the crime of simple false imprisonment....

...ied as follows: (a)In the case of a felony of the first degree, to a life felony. (b) In the case of a felony of the second degree, to a felony of the first degree. (c) In the case of a felony of the third degree, to a felony of the second degree. . Section 914.22(1) defines the crime of tampering; section 914.22(2)(c) specifically provides that the tampering offense is a "[f]elony of the first degree, punishable as provided in s....

...State, 224 So. 3d 842 (Fla. 2d DCA 2017), review granted, No. SC17-2011, 2018 WL 2069363 (Fla. Jan. 25, 2018), and Williams v. State, 246 So. 3d 529 (Fla. 2d DCA 2018). In McCloud, this court looked to the language of the statute at issue, section 914.22(1)(e), Florida Statutes (2014), which provides that a person commits the crime of tampering when that person "knowingly uses intimidation or physical force, or threatens another person, ....

...with intent to cause or induce any person to . . . [h]inder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense." 224 So. 3d at 844-45 (quoting § 914.22(1)(e))....

...bbery and false imprisonment, but he does not challenge those convictions. -2- enforcement regarding a crime. 224 So. 3d at 846. This court certified conflict with the First District's interpretation of section 914.22(1)(e) in McCray....

Pinder was not charged with a violation of section 914.22 of the Florida Statutes, which prohibits the

offense,1 he would not 1See § 914.22(1)(a)-(f), Fla. Stat. (2014) ("(1) A person

...4D22-2136. the defendant to fifteen years concurrent with his life sentence on the underlying charges. The defendant moved to correct an illegal sentence, arguing “solicitation to tamper with a witness as a first-degree felony was a non- existent offense.” Under sections 914.22 and 777.04, Florida Statutes (2021), the crime could be charged only as a second-degree felony....

...sunderstanding of the maximum possible sentence. The trial court denied the motion. The defendant now appeals. The defendant claims fundamental error in the trial court’s acceptance of his plea for a non-existent crime. He argues sections 914.22 and 777.04 limit solicitation to tamper with a witness in a first-degree underlying offense to a second-degree felony....

...Stat. The defendant argues the crime with which he was charged provides that “[t]ampering with a witness . . . is a[] [l]ife felony . . . where the official investigation or official proceeding affected involves the investigation or prosecution of a life or capital felony.” § 914.22(2)(e), Fla....

...(5) For the purposes of this section: (a) An official proceeding need not be pending or about to be instituted at the time of the offense; and (b) The testimony or the record, document, or other object need not be admissible *798 in evidence or free of a claim of privilege. § 914.22(1)(e) & (5), Fla....

PER CURIAM. Alberto Clerieo III appeals the judgment and sentence imposed upon him after a jury found him guilty of tampering with a witness, contrary to section 914.22, Florida Statutes (1993)....

...Ohle of Ohle & Ohle, Stuart, for appellant. Pamela Jo Bondi, Attorney General, and Catherine Linton, Assistant Attorney General, West Palm Beach, for appellee. FORST, J. Appellant Raul Banegas-Membran was found guilty of tampering with a witness under section 914.22(1), Florida Statutes (2013)....

...Attempted Manipulation of a Witness is not a form of Attempted Intimidation of a Witness The second question on appeal is whether the trial court erred in overruling Appellant’s objections to the State’s closing argument statements which intimated that manipulation is a form of intimidation under section 914.22(1), Florida Statutes (2014). We review the interpretation of statutes de novo. D.A. v. State, 11 So. 3d 423, 423 (Fla. 4th DCA 2009). In relevant part, section 914.22(1) criminalizes the actions of: A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers p...

...Although intimidation is one possible form of manipulation, because an act of intimidation is an attempt to affect 4 the intended recipient’s future actions, the reverse does not necessarily follow. Florida’s section 914.22 is based on a federal statute, 18 U.S.C....

...ting efforts to manipulate. We therefore hold, both based on the plain meaning of the word “intimidate” and on the federal courts’ reliance on a clause not found within the Florida law, that manipulation is not a form of intimidation under section 914.22, Florida Statutes....

...r the evidence presented was adequate to support a conviction.” Ferebee v. State, 967 So. 2d 1071, 1072-73 (Fla. 2d DCA 2007). The element at issue is the “knowingly uses intimidation” provision of 5 section 914.22, Florida Statutes....

...ion to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding . . . . § 914.22(1)(e), Fla....

...3d DCA 1986). See Rodri *1150 guez v. State, 547 So.2d 708 (Fla. 2d DCA 1989); Knotts v. State, 538 So.2d 826 (Fla. 1st DCA 1988). Second, defendant claims that since threatening or shooting at a witness is a statutory violation of which he was not convicted, § 914.22, Fla.Stat. (1989), the departure sentence was improperly based on that ground. Johnson v. State, 535 So.2d 651 (Fla. 3d DCA 1988). However, the defendant was never charged with a violation of section 914.22; thus, the threats were acceptable grounds for upward departure....

...Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986) as authorizing exclusion of the subject evidence. McGraw’s private investigator’s license was revoked by the Division of Licensing upon his adjudication of guilt of the felony offense of tampering with a witness in violation of section 914.22(1), Florida Statutes....

convictions of tampering with a witness, contrary to section 914.22(1), Florida Statute (2000), and retaliation

DELL, Judge. The state charged appellee, Louis Cohen, with three counts of witness tampering in violation of section 914.22(l)(a), Florida Statutes (1985)....

...conduct with the intent to influence the testimony of two witnesses in an official proceeding pending in Broward County, Florida. Appellee filed a motion to dismiss the information, in which he challenged the constitutionality of sections 914.21 and 914.22, Florida Statutes (1985). The state appeals from the trial court’s order granting appellee’s motion to dismiss. We affirm. In 1984, the Florida Legislature replaced the former witness tampering statute, section 918.14, Florida Statutes (1983), with section 914.22, Florida Statutes (1984). Section 914.22 contains the same provisions as those found in Federal Statute 18 U.S.C. § 1512 (1982) and both are entitled “Tampering with a Witness, Victim, or an Informant.” Florida’s Section 914.22 provides in pertinent part: (1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct towards another person, or offers pecuniary bene *895 fit o...

...imen, map, photograph, boundary mark, or other object that is misleading in a material respect; or (e) Knowingly using a trick, scheme, or device with intent to mislead. The trial court concluded: 2.Neither Florida Statute 914.21 nor Florida Statute 914.22 defines the phrase “influence the testimony of any person”. Specifically, the statute leaves ambiguous whether it is criminal to influence to testify falsely, or truthfully, or both. The only assistance seems to appear in Florida Statute 914.22(3) which states that if the defendant’s intent was to influence to testify truthfully then he has the burden of proof to establish this fact which is an affirmative defense....

...That result would deprive defendant of due process of law. In Re: Winship, 397 U.S. 358 [ 90 S.Ct. 1068 , 25 L.Ed.2d 368 ] (1970); Mullaney v. Wilbur, 421 U.S. 684 [ 95 S.Ct. 1881 , 44 L.Ed.2d 508 ] (1975); Yohn v. State, 476 So.2d 123 (Fla.1985). 3. Florida Statute 914.22(l)(a), to the extent that it attempts to criminalize innocent speech and conduct as in the present case, is unconstitutionally over-broad and vague....

...Appellee contends the statute as applied to him is unconstitutionally vague and overbroad because it fails to inform him of what conduct it prohibits and requires persons of reasonable intelligence to guess at its scope and meaning. Appellee further contends that a literal interpretation of section 914.22(l)(a) could result in an interpretation that would criminalize otherwise proper and innocent conduct such as an attorney or an investigator testing a witness’s recollection of the facts, or advising a witness that other witnesses hav...

...Here, as in many other instances, that requirement may and therefore must be effectuated by giving the statute a limiting construction which requires that the act or words forbidden only in general terms be performed or uttered with criminal intent, (footnotes omitted). Id. at 1091. Section 914.22 prohibits a broader scope of activity than that prohibited by its predecessor, section 918.14....

...Section 914.21, Florida Statutes (1984) defines “misleading conduct” in the same terms as 18 U.S.C. § 1515 (3). The state also contends the phrase, “[¡Influence the testimony of any person in an official proceeding,” when read in conjunction with section 914.22(3), narrows the application of the statute so as to overcome the argument that the statute is overbroad and therefore constitutionally infirm....

...97 , 102 L.Ed.2d 73 (1988), concluded the lower court’s repeated instructions adequately addressed the “burden-shifting aspect of section 1512(c) before the jury.” 843 F.2d at 751 . However, the Court of Appeals pointed out in its discussion of the constitutional question raised by section 1512(c), the counterpart to 914.22(3) that: Merely labelling something an affirmative defense does not mean the statute is constitutional....

...However, we have chosen not to place this burden of proof on the defendant in the state of Florida, but as we have said, to create a rebuttable presumption of sanity which if overcome, must be proven by the state just like any other element of the offense. Id. at 126. Under section 914.22(3), the defendant must prove that his intentional conduct constituted wholly innocent conduct from the outset....

...etent to control his own actions. In this instance, the defendant has the burden of production of evidence as well as the burden of persuasion, taking from the prosecution its burden of proving unlawful activity and intent beyond a reasonable doubt. Section 914.22(3) does not have the requisite narrowing effect to overcome the overbroad scope of activities encompassed by section 914.-22(l)(a). We affirm the trial court’s order declaring sections 914.22(l)(a) and (3) unconstitutional....

...After they provided this medical report, this doctor’s report, I don’t recall any other significant conversations with any of them. No. The complaint asserted that Appellant was in violation of the moral character rule governing law enforcement officers through violation of sections 914.22(1) (witness tampering), 837.012(1) (perjury), and 112.313(6) (misuse of official position), Florida Statutes, or any lesser included offenses, and that an appropriate penalty should be imposed in accordance with section 943.1395(7)....

...d “It was clear that [Appellant] did not believe her story and was determined to get her to change it.” Based on the findings, the ALJ concluded that the Commission had proven by clear and convincing evidence that Appellant had violated sections 914.22(1), *420 837.012(1), and 112.318(6), thereby violating section 943.1395(7) and Rule 11B-27.0011(4)(a) and (b)....

...Witness tampering occurs when the accused knowingly uses intimidation or physical force, or threatens another person, or engages in misleading conduct toward another person, with intent to cause or induce any person to withhold testimony from an official investigation or official proceeding. § 914.22(1), Fla....

...Further, witness harassment takes place when the accused intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from attending or testifying in an official proceeding or cooperating in an official investigation. § 914.22(3), Fla....

...rohibited in section 918.12 invokes the application of the attempt statute, section 777.04, resulting in an offense of a lesser degree. -5-  By comparison, the witness tampering statute, section 914.22, expressly states that a person violates the statute if he or she attempts to tamper with or harass a witness, victim, or informant: (1) A person who knowingly uses intimidation or physical force, or thre...

...or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to [take certain actions] commits the crime of tampering with a witness, victim, or informant. § 914.22, Fla....

...This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012 [85 So. 3d 1090], 2013 [113 So. 3d 754], 2016 [195 So. 3d 1088], and 2018 [249 So. 3d 554], and 2018. 21.11 HARASSING A [WITNESS] [VICTIM] [INFORMANT] § 914.22(3), Fla....

...[third degree felony] [second degree felony] [first degree felony [punishable by a term of years not exceeding life]] [life felony] [capital felony] [offense of indeterminable degree]. Give if requested and if applicable. § 914.22(5)(a), Fla. Stat. - 16 -  The State does not have to prove that an official proceeding was pending or about to be instituted at the time of this alleged offense. § 914.22(5)(b), Fla. Stat. The State does not have to prove that the testimony or the record, document, or other thing was admissible in evidence [or free from a claim of privilege]. § 914.22(6)(a), Fla....

...Stat. The State does not have to prove that the defendant knew or should have known that the official proceeding before a judge, court, grand jury, or government agency, was before a judge or court of the state, a state or local grand jury, or a state agency. § 914.22(6)(b), Fla....

...A proceeding before a federal agency that is authorized by law; or d. A proceeding before the Commission on Ethics. Lesser Included Offense The degree of this crime depends on the severity of the underlying offense that is the subject of the harassment. See § 914.22(4), Fla....

...in the State’s affidavit of VOP as well as the offense of armed kidnapping. Analysis a) The Witness Tampering Finding On appeal, Appellant argues that the court erred in finding that he violated his probation by committing the offense of witness tampering. Section 914.22 provides, in pertinent part, that a person commits the crime of witness tampering when that person: (1) [K]nowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleadi...

...gain to another person, with intent to cause or induce any person to: ... (e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense . . . . § 914.22(1)(e), Fla....

...that the victim was attempting to contact law enforcement when the threat was made. In support of his position, Appellant relies upon a line of cases from the First District which stand for the proposition that in order to support a conviction for witness tampering under section 914.22(1)(e), the State is required “to present evidence that the victim was attempting to contact law enforcement during the time of the incident.” McCray v....

...State, 123 So. 3d 1187 (Fla. 1st DCA 2013)). We reject this authority and instead adopt the Second District’s holding in McCloud v. State, 224 So. 3d 842, 846 (Fla. 2d DCA 2017). Certifying conflict with McCray, the Second District held that “section 914.22(1)(e) does not require the State to present evidence showing that the witness or victim ‘was attempting to contact law enforcement during the time of the incident.’” McCloud, 224 So. 3d at 846 (quoting McCray, 171 So. 3d at 832). In arriving at this conclusion, the McCloud court looked to the plain language of section 914.22(1)(e), which notably does not include any language providing that the witness must be attempting to contact law enforcement when the tampering occurs....

...knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement ‘relating to [not during] the commission or possible commission of an offense.’” Id. 3 (quoting § 914.22(1)(e), Fla....

...witness L.B. to testify falsely in a deposition in another criminal proceeding. See §§ 777.011, 837.02(1), Fla. Stat. (2011). The tampering charge concerned Mays's offer of pecuniary gain to induce L.B. to testify untruthfully in that deposition. See § 914.22(1)(f), Fla....

...duct or offered pecuniary benefit to a person (L.B.). 2. The defendant did so with intent to induce the person to testify untruthfully in an official investigation or an official proceeding.1 See § 914.22(1). As can be seen, the principal-to-perjury crime contains all the elements of the tampering crime, and in addition it requires that the induced person actually make the false statement in the official proceeding....

...is necessary only to determine the degree of the tampering charge. As the lesser included offense portion of the instruction states: "The degree of this crime depends on the severity of the underlying offense that is the subject of the tampering. See § 914.22(2), Fla. Stat." Cf. § 837.02(1), (2) (distinguishing degree of perjury crime based on degree of underlying crime). -3- a witness in violation of section 914.22....

...Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. Antoine McCloud challenges his judgment and sentence for tampering with a witness, a violation of section 914.22(1)(e), Florida Statutes (2014)....

...mpting to contact law enforcement during the commission of a crime. He also contends that his written judgment contains numerous clerical errors and that he is entitled to a new sentencing hearing based on a scoresheet error. Because we find that section 914.22(1)(e) does not require the State to prove that a witness was attempting to contact law enforcement during the time of the underlying criminal incident, we affirm Mr....

...DISCUSSION Mr. McCloud raises two issues on appeal. First, Mr. McCloud argues that the trial court erred in denying his motion for a judgment of acquittal because the State failed to present sufficient evidence to support a conviction under section 914.22(1)(e). In support of his argument, Mr....

...The State concedes that the judgment contains scrivener's errors and that Mr. McCloud is entitled to a new sentencing hearing. We shall address each issue in turn. The first issue concerns the trial court's denial of Mr. McCloud's motion for judgment of acquittal and the interpretation of section 914.22(1)(e)....

...2d DCA 2013). 1 Mr. McCloud does not challenge his convictions for battery and assault. -4-  As with all issues of statutory interpretation, we begin with the text of the statute. Section 914.22 provides, in pertinent part, that a person commits the crime of tampering with a witness, victim, or informant when that person: (1) ....

...cause or induce any person to: .... (e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense . . . . § 914.22(1)(e)....

...the accused specifically intended to hinder, delay, or prevent the communication of information regarding a crime to a law enforcement officer." Gill v. State, 622 So. 2d 92, 93 (Fla. 2d DCA 1993). However, Mr. McCloud contends that section 914.22(1)(e) also requires the State to present evidence showing that the witness was attempting to contact law enforcement during the commission or possible commission of the criminal offense....

...contact law enforcement during the time of the incident, evidence that the defendant broke her phone was not sufficient to prove witness tampering. Id. at 832. Our sister court, however, failed to provide any explanation for its interpretation of section 914.22(1)(e). Rather, it simply relied upon its previous decision in Thompson, which had held that the statute required the State to present evidence showing that "the victim was attempting to contact law enforcement during the time of the incident." McCray, 171 So....

...Notably, in Longwell, the State conceded "that the evidence presented did not establish a prima facie case of guilt as to the tampering charge." Id. -6-  Based on our plain reading of section 914.22(1)(e), we disagree with the First District's interpretation of the statute in McCray, Thompson, and Longwell. Section 914.22(1)(e) does not require the State to show that a witness, victim, or informant "was attempting to contact law enforcement during the time of the incident." McCray, 171 So. 3d at 832 (emphasis added). Such a requirement would add another element to a crime that is otherwise clearly defined. See § 914.22(1)(e); Fla....

...Rather, we find that the statute requires the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement "relating to [not during] the commission or possible commission of an offense."2 § 914.22(1)(e) (emphasis added)....

...Such an interpretation not only severely restricts the statute's applicability, but it also contravenes the plain meaning of the statute and could lead to absurd results.3 Therefore, we disagree with the First District's 2 Section 914.22(1) lists four different acts that an accused might take against a victim, witness, or informant that could constitute witness tampering: (1) the use or attempted use of intimidation or physical force; (2) a threat or attempted threat;...

...m if they "rat" on him could not be found guilty of witness tampering as long as that witness or victim did not attempt to contact the police during the commission of the underlying crime. In other words, under the First District's interpretation of section 914.22(1)(e), a witness or victim has a small window of time to contact law enforcement....

...If that witness does not try or, at a minimum, intend to contact law enforcement at the time of the underlying crime, then a defendant cannot be found guilty of witness tampering. This -7- interpretation and conclude that section 914.22(1)(e) does not require the State to present evidence showing that the witness or the victim "was attempting to contact law enforcement during the time of the incident." McCray, 171 So. 3d at 832. In this case, based on our interpretation of section 914.22(1)(e) and viewing the facts adduced at trial in a light most favorable to the State, we find that the State presented sufficient evidence to sustain Mr....

...court shall correct the judgment to indicate that Mr. McCloud was tried and found guilty by a jury. The trial court shall also correct the judgment to reflect that Mr. McCloud was convicted of tampering with a witness, a third-degree felony. See § 914.22(2)(a) (stating that when the underlying convictions are misdemeanor offenses, witness tampering is a third-degree felony). The trial court shall further correct the judgment to show that Mr....

....800(b)(2). The motion was deemed denied. -9-  For these reasons, we affirm Mr. McCloud's conviction for witness tampering and certify conflict with the First District's interpretation of section 914.22(1)(e) in McCray....

...Evans’s conviction, sentences, and order of probation and community control without further comment. However, the written judgment indicates that Mr. Evans was adjudicated guilty on count four of the original charge of first-degree tampering with a witness involving a second-degree felony, see § 914.22(l)(e), (2)(e), Fla. Stat. (2014), which is inconsistent with the jury’s finding of guilt, and the trial court’s oral adjudication of guilt, on the lesser included offense of third-degree tampering with a witness involving a misdemeanor, see § 914.22(l)(e), (2)(a)....

...Evans's conviction, sentences, and order of probation and community control without further comment. However, the written judgment indicates that Mr. Evans was adjudicated guilty on count four of the original charge of first-degree tampering with a witness involving a second-degree felony, see § 914.22(1)(e), (2)(c), Fla. Stat. (2014), which is inconsistent with the jury's finding of guilt, and the trial court's oral adjudication of guilt, on the lesser included offense of third-degree tampering with a witness involving a misdemeanor, see § 914.22(1)(e), (2)(a)....

PER CURIAM. The issue on appeal is the constitutionality of a section of the witness tampering statute, section 914.22(l)(b), Florida Statutes (1989). The trial court granted defendant’s motion to dismiss the charge finding section 914.22(l)(b) unconstitutional....

could be the basis for an information under section 914.22, Florida Statutes (1991). I note that tampering