#### STATE of Florida, Appellant, v. Kent A. MURRAY, Jr., Appellee.

No. 76-2485.

District Court of Appeal of Florida, Fourth District.

Aug. 16, 1977.

*708David H. Bludworth, State’s Atty. for Palm Beach County, and William B. King, Asst. State’s Atty., West Palm Beach, for appellant.

Michael A. Nugent and David Roth, Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee.

DAUKSCH, Judge.

Murray is charged under Section 918.-14(3)(a)1, Florida Statutes (1975), with having caused a witness to be placed in fear. The court dismissed the information because it did not allege the defendant knew that a trial, proceeding or investigation was pending as mentioned in Section 918.14(1), Florida Statutes (1975).1

We agree the information is defective and should be dismissed but not because it fails to allege the matters mentioned in paragraph (1) of the Statute. That paragraph does not apply to paragraphs 3(a)1, 2 and 3 because the Statute is meant to proscribe the tampering with or *retaliation against*a witness; and a trial, proceeding or investigation may be completed when retaliation is sought or assault is made. In fact, retaliation probably does not occur until after testimony is given and there is something against which to retaliate.

This Statute is different from other assault or battery or threat Statutes in that it requires the alleged victim to be or have been a witness. But many people are witnesses to many things so it must be alleged that the defendant knew the alleged victim was a witness. Some connection between the actions of the defendant and the fact the alleged victim was a witness must also be alleged in order to allege a violation of this Statute which is in effect an enhanced penalty Statute.

The Order of the trial court dismissing the information is affirmed without prejudice to the State to refile a proper information.

ALDERMAN, C. J., and CROSS, J., concur.

1

.“918.14 Tampering with witnesses.—

> (1) It is unlawful for any person, knowing that a criminal trial, an official proceeding, or an investigation by a duly constituted prosecuting authority, a law enforcement agency, a grand jury or legislative committee, or the Judicial Qualifications Commission of this state is pending, or knowing that such is about to be instituted, to endeavor or attempt to induce or otherwise cause a witness to:

> (a) Testify or inform falsely; or

> (b) Withhold any testimony, information, document, or thing.

> (2) If any person violates the provisions of this section by the use of force, deception, threat, or offer of pecuniary benefit to induce any conduct described in subsection (1), the violation shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.-082 or s. 775.083.

> (3)(a) It is unlawful for any person:

> 1. To cause a witness to be placed in fear by force or threats of force;

> 2. To make an assault upon any witness or informant; or

> 3. To harm a witness by any unlawful act in retaliation against the said witness for anything lawfully done in the capacity of witness or informant.

> (b) Any person violating the provisions of this subsection shall be guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.”