VERNON WINDELL GASKIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vernon Gaskin was convicted of grand theft for unlawfully obtaining jewelry from Brantley Jewelry. On appeal, Gaskin raised a new argument that the charging document was defective for failing to allege intent to permanently deprive, but the court affirmed the conviction, finding the information substantially alleged the essential elements and that the defect was waived by failure to challenge it below.
The court affirmed the conviction, holding that a charging document substantially but imperfectly charging a crime is not fundamentally deficient, and such imperfections are harmless when not attacked by motion to dismiss. The failure to challenge the information in the trial court waived the right to raise the defect on appeal.
[1] A charging document that substantially but imperfectly alleges a crime is not fundamentally deficient and any such imperfections are deemed harmless if not attacked by a…
[2] Failure to challenge a charging document in the trial court waives the right to do so on appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a charging document which substantially but imperfectly charges a crime is not fundamentally deficient. Such imperfections should therefore be deemed harmless when not attacked by motion to dismiss.”
Establishes the court's holding that minor defects in charging documents are harmless if not raised at trial through motion to dismiss.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn April 13, 1981, Gaskin unlawfully obtained a tray containing eleven assorted rings valued at more than $100 from Brantley Jewelry in Blountstown, F…
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[*367] PER CURIAM.
We affirm the conviction of grand theft, but remand to the trial court for correction of the sentence.
Appellant was arrested and convicted on an information containing the following allegations:
VERNON WINDELL GASKIN, on the 13th day of April, 1981 in the state and county aforesaid did unlawfully obtain or use, or endeavor to obtain or use the property of Brantley Jewelry, Blounts-town, Florida, to-wit: One tray containing eleven assorted rings, having a value of more than $100.00, with the intent to deprive or defraud the said Brantley Jewelry of a right to said property or a benefit therefrom or to appropriate said property to his own use or to the use of any person not entitled thereto, in violation of Section 812.014, Florida Statutes.
In this appeal, appellant presents an argument not raised in the trial court, i.e., that the information was fundamentally defective because it did not contain an allegation that he intended to permanently deprive the owner of his property. Appellant urges this court to follow the Fifth District Court’s opinion in Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980), holding that the specific intent to permanently deprive was a requisite element of the crime charged, and that the failure to so charge and instruct the jury required reversal. We need not consider the Faison rule in this case because, as that same court has more recently held, a charging document which substantially but imperfectly charges a' crime is not fundamentally deficient. Such imperfections should therefore be deemed harmless when not attacked by motion to dismiss. Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982). We find that the charging document in this case, as in Green, substantially alleged the essential elements of the crime charged. Therefore the failure to challenge the information in the proceedings below waived the right to do so on appeal.
We have examined the other points raised by appellant and find them to be without merit. However, the case must be remanded for the purpose of correcting the sentence to properly reflect the amount of jail time credit.
The judgment and conviction are affirmed; the cause is remanded for correction of the sentence.
McCORD, BOOTH and WENTWORTH, JJ., concur.
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Livolsi v. State, 451 So. 2d 542 (Fla. 2d DCA 1984)…te v. Taylor, 283 So. 2d 882 (Fla. 4th DCA 1973). And, because the alleged defect is not jurisdictional and was not timely challenged in the trial court, appellant cannot raise it for the first time here. See Fla.R.Crim.P. 3.190(c); Gaskin v. State, 420 So. 2d 366 (Fla. 1st DCA 1982), appeal dismissed, 424 So. 2d 761 (Fla.1983); Tucker; Asmer; Brewer v. State, 413 So. 2d 1217 (Fla. 5th DCA 1982); Fields; Haselden; Taylor; Catanese; Ward v. State, 236 So. 2d 187 (Fla. 1st DCA 1970). Likewise, we find no merit…
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Kearse v. State, 464 So. 2d 202 (Fla. 1st DCA 1985)…A 1983). In that case “to take away by force” was held to be equivalent to “steal”, which is sufficient to imply intent to permanently deprive the owner. We note however, that the language is not as clearly worded as it could be. In Gaskin v. State, 420 So. 2d 366 (Fla. 1st DCA 1982), dism. 424 So. 2d 761 (Fla.1984) we held that a charging document which substantially but imperfectly charges a crime is not fundamentally deficient. Such imperfections should therefore be deemed harmless when not attacked by a m…
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Tajhon Wilson v. State (Fla. 3d DCA 2019)…rive the person or the owner of the money or other property . . . .” (Emphasis added). (internal citations omitted). By failing to challenge the information in the proceedings below, Wilson waived his right to do so on appeal. See Gaskin v. State, 420 So. 2d 366, 367 (Fla. 1st DCA 1982). Wilson argues that because the information wholly fails to allege that he “took money,” it is fundamentally defective, and the conviction arising from that fundamentally defective information is manifestly unjust. We disa…
Authorities Cited
- Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982)
- Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980)