MICHAEL TURNER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that an information filed by an imposter purporting to be an assistant state attorney is void, and a conviction based on it must be vacated.
Appellant was convicted of burglary based on an information signed by Gregory Lattimer, who was not a licensed attorney but posed as an assistant stat…
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PER CURIAM.
One Gregory Lattimer purporting to be a member of the Florida Bar secured a position as an assistant state attorney. While he was employed, he signed as “assistant state attorney” an information charging the appellant with the crime of burglary, which allegedly occurred between December 1, 1981 and January 4, 1982. The appellant was ultimately convicted and an appeal seeking review of this conviction is presently pending under clerk’s file numbered 82-1350. That appeal was dismissed by this court in June 1982 for failure to file appellant’s brief without prejudice to seek a belated appeal pursuant to Baggett v. Wainwright, 229 So. 2d 239 (Fla.1970). The appeal was reinstated by this court on August 6, 1982. During the period in which the aforementioned appeal was dismissed, the appellant filed in the trial court a motion to vacate pursuant to Rule 3.850 Florida Rules of Criminal Procedure, which was denied. That order is the subject matter of an appeal pending under clerk’s file numbered 83-2011.
We find that the original information was a nullity and void, having been filed by an “imposter” posing as an assistant state attorney,1 therefore the trial court erred in denying the Rule 3.850 motion and we hereby reverse this order of denial and do hereby vacate the original conviction and sentence and the cause is remanded for further proceedings. See and Compare: Dobson v. State, 434 So. 2d 332 (Fla. 3d DCA 1983).
Reversed and remanded with directions.
. It is conceded that Lattimer was an "imposter” and that this fact was not known to the state or defense until after Turner’s trial.
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Dixon v. State, 812 So. 2d 595 (Fla. 1st DCA 2002)…on vitiates it”); State ex rel. Wentworth v. Coleman, 121 Fla. 13, 163 So. 316 (1935)(holding that information with wrong name that was improperly altered without authorization to the correct name of the defendant was vitiated). Cf. Turner v. State, 444 So. 2d 974 (Fla. 3d DCA 1983)(ruling that information was null and void because it was signed by an imposter who was posing as an assistant state attorney). See generally Southeast Bank, N.A. v. Sapp, 554 So. 2d 1193, 1195 (Fla. 1st DCA 1989)("The law regardin…
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Byrd v. State, 730 So. 2d 382 (Fla. 3d DCA 1999)…v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993); Holt v. State, 516 So. 2d 25 (Fla. 3d DCA 1987). The rule exists because this is the type of defect which could readily be cured if timely raised in the trial court. Defendant relies on Turner v. State, 444 So. 2d 974 (Fla. 3d DCA 1984), but (a) it involved a signed information executed by an unauthorized person, not (as alleged here) an unsigned information, and (b) there is no indication that Rule 3.140 was raised or considered in connection with that case. Af…
Authorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Dobson v. State, 434 So. 2d 332 (Fla. 3d DCA 1983)