CLIFFORD JOSEPH MILLIKEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial for a capital felony based on an information, rather than a grand jury indictment, is void and requires reversal.
Appellant was charged by information with sexual battery, a capital felony. The state argued the crime was not capital, thus avoiding the need for a g…
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FRANK D. UPCHURCH, Jr., Judge.
Appellant was charged by a four count information with sexual battery upon a person eleven years of age or younger which is a capital felony under section 794.011(2), Florida Statutes (1979).
Section 794.011(2) provides:
A person 18 years of age or older who commits a sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in §§ 775.082 and 921.141. . .. (Emphasis added.)
Article I, section 15(a), Florida Constitution, provides:
No person shall be tried for capital crime without presentment or indictment by a grand jury... .
The state contends that appellant’s crimes involved a “normal” sexual battery situation and that imposition of the death penalty was therefore impermissible. See Purdy v. State, 343 So. 2d 4 (Fla.1977), thus making the crime non-capital and obviating the need to proceed by indictment.
Article I, section 15(a), clearly 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 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 fatal since the defect affect ed the jurisdiction of the circuit court to proceed to trial. Bradley v. State; Hunter v. State, 358 So. 2d 557 (Fla. 4th DCA 1978).
Appellant’s trial and conviction are void and the adjudication must be REVERSED.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cooper v. State, 453 So. 2d 67 (Fla. 1st DCA 1984)…capital felony.” means, as appellant urges, that the above procedural requirements are still applicable notwithstanding the fact that the capital feature of the crime has been effectively eliminated. Appellant relies in part upon Milliken v. State, 398 So. 2d 508 (Fla.5th DCA 1981), which held that a charge of sexual battery under Section 794.011(2) must be by indictment because the charged offense is a capital felony. There, the state attempted to proceed by information because, as the state contended, the…
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Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986)…her than by indictment. See State v. Wells, 466 So. 2d 291 (Fla. 2d DCA 1985); Snowden v. Donner, 464 So. 2d 223 (Fla. 3d DCA), rev. dismissed, 469 So. 2d 750 (Fla.1985); Cooper v. State, 453 So. 2d 67 (Fla. 1st DCA 1984). Because Milliken v. State, 398 So. 2d 508 (Fla. 5th DCA 1981) was decided before Buford outlawed the death penalty for this crime, it is no longer apposite. Neither do we find merit in appellant’s argument that the court should have applied the sentencing guidelines in effect at the time t…
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Ulloa v. State, 486 So. 2d 1373 (Fla. 3d DCA 1986)…pital offense when that person sentenced to life). In contrast, in cases where death could have been imposed on the defendant, but was not, the failure to provide procedural requirements has been held to have voided the trial. See Milliken v. State, 398 So. 2d 508 (Fla.1981) (where appellant charged with sexual battery of a person under eleven years of 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 th…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Arthur Eugene Manucy v. The Honorable W. L. Wadsworth, 293 So. 2d 345 (Fla. 1974)
- Purdy v. State, 343 So. 2d 4 (Fla. 1977)
- Lowe v. Stack, 326 So. 2d 1 (Fla. 1972)
- Bradley v. State, 374 So. 2d 1154 (Fla. 3d DCA 1979)
- Hunter v. State, 358 So. 2d 557 (Fla. 4th DCA 1978)
- Howard v. State, 385 So. 2d 739 (Fla. 3d DCA 1980)