EVERETT BRADLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A conviction for first-degree murder obtained via information rather than grand jury indictment is void and can be challenged via a Rule 3.850 motion.
[1] A criminal proceeding for first-degree murder, a capital crime, must be commenced by a grand jury indictment, not an information, to be valid.
[2] A jurisdictional deficiency arising from the commencement of a capital crime proceeding by information instead of indictment may be challenged via a motion to vacate conv…
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Join FLexlaw to unlock all legal intelligenceThe defendant was informed against for first-degree murder, a capital crime, rather than indicted by a grand jury. The trial court summarily denied hi…
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SCHWARTZ, Judge.
The defendant appeals from the summary denial of his Fla.R.Crim.P. 3.850 motion to vacate his conviction and sentence of life imprisonment for first degree murder.
On December 14, 1972, Bradley was informed against, rather than indicted, for the first degree murder of one Robert Feaster which allegedly occurred on October 19, 1972, subsequent to the October 1, 1972 effective date of Florida’s reenactment of the death penalty in Section 921.141, Florida Statutes (1972).' The law of our state is now well-established, notwithstanding the fact that Bradley never faced and was not in fact sentenced to death,1 that his trial and conviction were wholly void. This is so because, under Article I, Section 15(a) of the Florida Constitution, a grand jury indictment was required validly to commence proceedings for the “capital crime” of first degree murder. Lowe v. Stack, 326 So. 2d 1 (Fla.1974); State ex rel. Manucy v. Wadsworth, 293 So. 2d 345 (Fla.1974); Hunter v. State, 358 So. 2d 557 (Fla. 4th DCA 1978), cert. denied, 365 So. 2d 712 (Fla.1978); see also Bell v. State, 360 So. 2d 6 (Fla.2d DCA 1978), cert. denied, 372 So. 2d 445 (Fla.1979).
It is just as clear, contrary to the state’s contention, that the jurisdictional deficiency may be challenged, as here, by a Rule 3.850 motion, and need not be raised in a motion to dismiss the information. Bell v. State, supra; State v. Hunter, supra. In accordance with these authorities, we have no choice2 but to reverse the order below and to remand the cause with directions to vacate and set aside the appellant’s conviction and sentence.
It is so ordered.
Reversed and remanded with directions.
. As did the supreme court in Bell v. State, infra, see dissenting opinion of Justice Aider-man at note 1, this court inquired of Bradley’s counsel at oral argument whether his client was aware of and wished to undergo the risk, if he were now to be indicted for first degree murder of facing the possible imposition of the death penalty. As did Bell’s lawyer, counsel answered in the affirmative.
. Hoffman v. Jones, 280 So. 2d 431 (Fla.1973).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ulloa v. State, 486 So. 2d 1373 (Fla. 3d DCA 1986)…t); Howard v. State, 385 So. 2d 739 (Fla. 3d DCA), pet. for rev. dismissed, 389 So. 2d 1114 (Fla.1980) (failure to indict defendant charged with first-degree murder voided trial; noting that defendant was tried by six-person jury); Bradley v. State, 374 So. 2d 1154 (Fla. 3d DCA 1979) (failure to indict voided trial). . The length of the separation here and in Livingston — a weekend — is identical. Livingston, however, does not correlate the length of the separation to the presumptiveness of the harm. The esse…
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Griffith v. State, 548 So. 2d 244 (Fla. 3d DCA 1989)…be imposed. E.g., State v. Hogan, 451 So. 2d 844, 845 (Fla.1984) (“a capital case is one where death is a possible penalty”); Lowe v. Stack, 326 So. 2d 1 (Fla.1974) (first degree murder requires indictment rather than information); Bradley v. State, 374 So. 2d 1154 (Fla. 3d DCA 1979) (same); State ex rel. Manucy v. Wadsworth, 293 So. 2d 346 (Fla.1974) (same); Ulloa v. State, 486 So. 2d 1373, 1375 n. 4 (Fla. 3d DCA 1986) (“In cases where death as a punishment was unavailable at the time the defendant was charge…
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Milliken v. State, 398 So. 2d 508 (Fla. 5th DCA 1981)…. 2d 1 (Fla.1975); State ex rel. Manucy v. Wadsworth, 293 So. 2d 345 (Fla.1974). This is so notwithstanding the fact that defendant never faced nor in fact was sentenced to death. Howard v. State, 385 So. 2d 739 (Fla. 3d DCA 1980); Bradley v. State, 374 So. 2d 1154 (Fla. 3d DCA 1979). A trial under an information charging a capital felony is void and the adjudication and sentence must be reversed. Howard v. State. Appellant’s failure to move to dismiss the information either before or during trial is not fata…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- State of Fla. ex rel. Arthur Eugene Manucy v. The Honorable W. L. Wadsworth, 293 So. 2d 345 (Fla. 1974)
- Lowe v. Stack, 326 So. 2d 1 (Fla. 1972)
- Hunter v. State, 358 So. 2d 557 (Fla. 4th DCA 1978)
- State v. Bell, 372 So. 2d 445 (Fla. 1979)
- Marotto v. State, 360 So. 2d 6 (Fla. 4th DCA 1978)
- Bell v. State, 360 So. 2d 6 (Fla. 2d DCA 1978)