JAMES HAROLD PHELAN, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioner sought prohibition against prosecution for first degree murder, arguing that the State's nolle prosequi (nol pros) as to his co-defendant constituted an unauthorized amendment to the indictment that divested the trial court of jurisdiction. The Fourth District Court of Appeal rejected both the jurisdictional argument and deferred the prejudice argument for later consideration at trial.
The court held that the nol pros did not constitute a prohibited amendment to the indictment and did not divest the trial court of jurisdiction. The court deferred the question of actual prejudice resulting from the co-defendant's removal for determination at trial, as it was premature to speculate on prejudicial effects at the prohibition stage.
[1] A prosecutor's entry of a nolle prosequi as to one co-defendant does not constitute an amendment to an indictment that divests the trial court of jurisdiction over the re…
[2] Only the Grand Jury may amend an indictment.
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“Although it is clear that the Grand Jury alone can amend its indictment, we do not view the deletion of one defendant as a prohibited amendment.”
Establishes the court's core holding that a nolle prosequi as to a co-defendant does not constitute an impermissible amendment to the indictment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 21, 1983, the Broward County Grand Jury indicted James Phelan and Joan Gibby on a single count of first degree murder. Approximately six …
The full statement of facts, procedural history, and disposition for this case are member content.
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BERANEK, Judge.
Petitioner seeks prohibition against his continued prosecution for the offense of first degree murder. On September 21, 1983, the Broward County Grand Jury indicted James Phelan and Joan Gibby on a single offense of alleged first degree murder. Approximately six weeks later, the State announced a nol pros as to the defendant Gibby. Petitioner, James Phelan, as the remaining defendant filed a motion to dismiss asserting that the nol pros constituted an unauthorized “amendment” to the indictment. The trial court denied the motion to dismiss and petitioner seeks review by prohibition.
Petitioner cites Russell v. State, 349 So. 2d 1224 (Fla. 2d DCA 1977), for the principle which prohibits a prosecutor from amending an indictment. The law seems clearly established that only the Grand Jury may amend an indictment. Also see Johnson v. State, 190 So. 2d 811 (Fla. 4th DCA 1966).
The petitioner’s argument is actually twofold. It is initially asserted that the nol pros constituted an amendment to the indictment which divested the trial court of jurisdiction over the remaining defendant. Alternatively, petitioner contends that the deletion of the co-defendant from the prosecution will result in unfair prejudice to the petitioner during the actual trial if and when it occurs. We initially reject the jurisdiction argument. Although it is clear that the Grand Jury alone can amend its indictment, we do not view the deletion of one defendant as a prohibited amendment. Indeed, the question of a joint trial or separate trials for the initially indicted co-defendants was never even addressed by the trial court. Petitioner herein might have sought and obtained a severance, and separate trials certainly would not have been tantamount to an amendment of the indictment. See Rule of Criminal Procedure 3.152.
Indeed, the State could have proceeded to trial against both defendants as initially charged and simply chosen not to present evidence as to one of the defendants. We conclude that the nol pros did not divest the trial court of jurisdiction to proceed against petitioner. The petitioner’s second argument, that the nol pros will result in actual prejudice, cannot yet be answered. We would be guessing if we attempted to predict at this point how the presence or absence of the co-defendant in the indictment will affect the eventual trial. These matters have yet to be brought to the attention of the trial court, and the present ruling regarding jurisdiction certainly is no answer to the questions which may be presented regarding actual prejudice in the eventual trial.
PROHIBITION IS HEREBY DENIED.
GLICKSTEIN and HURLEY, JJ., concur.
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Tingley v. State, 549 So. 2d 649 (Fla. 1989)…ange the time period in which an alleged sexual battery occurred to a period prior to the time stated in the indictment. We find conflict with Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927); Dickson v. State, 20 Fla. 800 (1884); Phelan v. State, 448 So. 2d 1256 (Fla. 4th DCA 1984); Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979); and Russell v. State, 349 So. 2d 1224 (Fla. 2d DCA 1977). We have jurisdiction. Art V, § 3(b)(3), Fla. Const. For the reasons expressed „ below, we approve the district court’s…1 / 2
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Oliver v. State, 569 So. 2d 1332 (Fla. 1st DCA 1990)…formation. The state cannot amend an indictment without resubmission to a grand jury, unless the correction involves a clerical matter. See, Tingley v. State, 495 So. 2d 1181 (Fla. 5th DCA 1986), aff'd, 549 So. 2d 649 (Fla.1989) and Phelan v. State, 448 So. 2d 1256 (Fla. 4th DCA 1984). From the reference to both indictments and infor-mations, it is clear that the comment was not intended to suggest that an untimely motion for consolidation can be effectuated by simply amending an information on the eve of tria…
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Tingley v. State, 495 So. 2d 1181 (Fla. 5th DCA 1986)…indictment in such a manner as to go outside the crimes charged in the indictment. Only a grand jury has the authority to alter an indictment. Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927); Dickson v. State, 20 Fla. 800 (1884); Phelan v. State, 448 So. 2d 1256 (Fla. 4th DCA 1981); Perez v. State, 371 So. 2d 714 (Fla. 2d DCA 1979); Russell v. State, 349 So. 2d 1224 (Fla. 2d DCA 1977). A statement of particulars restricts the state to proof of particular times, or within [*1184] particular time periods. Sta…
Authorities Cited
- Russell v. State, 349 So. 2d 1224 (Fla. 2d DCA 1977)
- Augustus Johnson, Jr. v. State, 190 So. 2d 811 (Fla. 4th DCA 1966)