WILLIE FRED HOWARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willie Fred Howard was charged by information with first degree murder in 1973, convicted of second degree murder, but the conviction was reversed because charging a capital crime by information rather than grand jury indictment violated the Florida Constitution, despite the defendant never being sentenced to death.
The trial was void because Article I, Section 15(a) of the Florida Constitution requires that capital crimes be charged by grand jury presentment or indictment, not by information. The conviction and sentence are reversed and remanded. However, the prosecution by information was timely commenced for purposes of tolling the statute of limitations for second degree murder and lesser included offenses.
[1] A trial for a capital crime is void if the defendant is tried by information rather than by grand jury indictment, even if the defendant is not sentenced to death.
[2] Following the revitalization of the death penalty, a prosecution for first-degree murder must be initiated by grand jury indictment.
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Join FLexlaw to unlock all legal intelligence“the trial of a defendant charged with first degree murder, by information, was void because Article I, Section 15(a) of the Florida Constitution prohibits any person from being tried for a capital crime without presentment or indictment by a grand jury.”
Establishes the constitutional requirement that capital crimes must be charged by grand jury indictment, not information
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Join FLexlaw to unlock all legal intelligenceHoward was charged by information on January 18, 1973, with first degree murder of Johnnie L. Williams, allegedly committed on November 5, 1972. He wa…
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NESBITT, Judge.
The aftermath of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), decided June 29, 1972, which abolished the death penalty, is still upon us.
Following abolition of the death penalty in Furman, prosecutors properly charged persons accused of first degree murder by information. After the Legisla ture revitalized the death penalty by the enactment of Section 921.141, Florida Statutes (Supp.1972), effective October 1, 1972, the trial of a defendant charged with first degree murder, by information, was void because Article I, Section 15(a) of the Florida Constitution prohibits any person from being tried for a capital crime without presentment or indictment by a grand jury. Lowe v. Stack, 326 So. 2d 1 (Fla.1975); State ex rel. Manucy v. Wadsworth, 293 So. 2d 345 (Fla.1974). This is so notwithstanding the fact that a defendant never faced nor in fact was sentenced to death. Bradley v. State, 374 So. 2d 1154 (Fla. 3d DCA 1979).
In the present case, the defendant was charged, by information filed on January 18, 1973, with first degree murder of Johnnie L. Williams, which crime was allegedly committed on November 5, 1972. The defendant was tried before a six-person jury and convicted of murder in the second degree on May 30, 1973. Upon the rationale of Lowe v. Stack, supra, the trial of the defendant was void and his adjudication and sentence must be reversed. See also Bell v. State, 360 So. 2d 6 (Fla. 2d DCA 1978), cert. denied 372 So. 2d 445 (Fla.1979); Smith v. State, 315 So. 2d 224 (Fla. 1st DCA 1975).
The trial of the defendant was void; however, for the purpose of tolling the applicable period of limitations1 with respect to second degree murder and other lesser included offenses, his prosecution by information was timely commenced. Lowe v. Stack, supra; Bradley v. State, supra; Bell v. State, supra.
For the jurisdictional infirmity disclosed, the denial of the defendant’s motion for postjudgment relief pursuant to Florida Rule of Criminal Procedure 3.850 was error. Bradley v. State, supra; Bell v. State, supra. Accordingly, the defendant’s judgment and sentence are reversed and remanded for further proceedings.
. Former § 932.465, Fla.Stat. (1971).
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Cooper v. State, 453 So. 2d 67 (Fla. 1st DCA 1984)…7). But, significantly, Milliken was a pre-Buford case, and capital punishment was still a possible penalty in child-rape cases. Understandably, therefore, the Fifth District held that the prosecution must-be by indictment. See also Howard v. State, 385 So. 2d 739 (Fla. 3rd DCA 1980). Appellant also relies upon Nova v. State, 439 So. 2d 255 (Fla.3rd DCA 1983). Nova involved a prosecution for first degree murder. Prior to commencement of the trial, the state and defense entered into a stipulation whereby the…
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Ulloa v. State, 486 So. 2d 1373 (Fla. 3d DCA 1986)…f age, and such was punishable by death, failure to obtain indictment voided trial, and State’s argument that the crime was actually normal sexual battery and thus not punishable by death did not obviate the need for an indictment); 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)…
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Milliken v. State, 398 So. 2d 508 (Fla. 5th DCA 1981)…or indictment by a grand jury. Lowe v. Stack, 326 So. 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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Furman v. Georgia, 408 U.S. 238 (U.S. 1972)
- 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)
- Bradley v. State, 374 So. 2d 1154 (Fla. 3d DCA 1979)
- 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)
- Smith v. State, 315 So. 2d 224 (Fla. 1st DCA 1975)