LEMAR HASELDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant waived the defect in the information by failing to raise it in the trial court, as the information did not wholly fail to charge a crime.
Appellant was convicted of aggravated battery. The information failed to allege the essential elements of battery but did allege the use of a deadly w…
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MOORE, Judge.
Appellant seeks reversal of convictions on three counts of aggravated battery and contends the court erred because the information failed to allege the essential elements of battery in each of the counts. He agrees that he did not raise this issue in the trial court but argues that the information was fatally defective because it did not state a crime under the laws of Florida. We disagree and affirm.
The information alleged in pertinent part that the appellant “did, unlawfully commit a battery upon (named person) and in commission of said battery did use a deadly weapon, to-wit: a 20 gauge shotgun, contrary to Florida Statute 784.045(l)(b)”. Each of the other counts was in similar language, and each failed to allege the essential elements of a battery. This failure would ordinarily cause the information to be quashed if a timely objection is raised. Ferrell v. State, 358 So. 2d 843 (Fla. 3rd DCA 1978).
The failure to timely raise a defect in an information constitutes a waiver of the defect unless the information wholly fails to charge a crime. State v. Taylor, 283 So. 2d 882 (Fla. 4th DCA 1973); Tracey v. State, 130 So. 2d 605 (Fla.1961). The failure to allege one ingredient of an offense does not render an information invalid as wholly failing to state a crime. Id. at 611. Although the information here is defective, it does not wholly fail to state a crime, and the appellant’s failure to raise the defect in the trial court constituted a waiver of the defect.
We have considered appellant’s contention that the evidence was insufficient to support the convictions and find it to be without merit.
AFFIRMED.
BERANEK and HURLEY, JJ., concur.
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Citator
Cited By (13 total)
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…surrounding lesser included offenses. .Failing to object to improper instructions is thus analogous to failing to object to faulty informations; both failures will result in waiver. See Tracey v. State, 130 So. 2d 605 (Fla.1961); Haselden v. State, 386 So. 2d 624 (Fla.4th DCA 1980).…
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State v. Gray, 435 So. 2d 816 (Fla. 1983)…where the actual notice provided is sufficient, and where all the elements of the crime in question are proved at trial. See, e.g., Tracey v. State, 130 So. 2d 605 (Fla. 1961); State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980); Haselden v. State, 386 So. 2d 624 (Fla. 4th DCA 1980); Caves v. State, 302 So. 2d 171 (Fla. 2d DCA 1974), cert. denied, 314 So. 2d 585 (Fla.1975). The state points out that here the information was drafted substantially in the language of the statute, and concludes that any omitted…
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Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996)…rime is not fatal, however, because the failure to charge a crime is fundamental error. State v. Gray, 435 So. 2d 816 (Fla.1983); Tracey v. State, 130 So. 2d 605 (Fla.1961); Salas v. State, 544 So. 2d 1040 (Fla. 4th DCA 1989); and Haselden v. State, 386 So. 2d 624 (Fla. 4th DCA 1980). It seems reasonable to analogize the failure to charge a crime to the failure to charge a violation of probation. Hence, we agree that defendant’s failure to raise an objection to the formal charge of VOP does not constitute a w…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tracey v. State, 130 So. 2d 605 (Fla. 1961)
- Martinez v. State, 283 So. 2d 882 (Fla. 4th DCA 1973)
- Abe Schonfeld et ux. v. Metro. Dade Cnty., 358 So. 2d 843 (Fla. 3d DCA 1978)