STATE OF FLORIDA, PETITIONER,
v.
LUIS A. VAZQUEZ, RESPONDENT
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The Florida Supreme Court held that a circuit court retains jurisdiction to try a defendant on a lesser included misdemeanor offense when a felony is charged in the information, even if the state proceeds only on the misdemeanor, provided the state does not formally enter a nolle prosequi dismissing the felony charge on the record.
A circuit court retains jurisdiction to try a defendant on a lesser included misdemeanor when a felony is charged in the information, even if the state proceeds only on the misdemeanor, because jurisdiction is determined by the charge in the information and the circuit court has jurisdiction of all lesser included offenses. Formal entry of a nolle prosequi on the record is required to divest the court of jurisdiction.
[1] Circuit court jurisdiction in criminal cases is determined by the charge made in the indictment or information.
[2] A circuit court retains jurisdiction over a felony charge even when the prosecution proceeds on a lesser included misdemeanor offense.
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Join FLexlaw to unlock all legal intelligence“jurisdiction in criminal cases is determined by the charge made in the indictment or information”
Establishes the foundational principle that jurisdiction depends on what crime is charged, not what the state ultimately prosecutes
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Join FLexlaw to unlock all legal intelligenceThe state charged Vazquez with aggravated assault, a third-degree felony. At trial, the state attorney announced he would proceed on the lesser includ…
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McDONALD, Justice.
The state petitions for review of Vazquez v. State, 427 So. 2d 1125 (Fla. 5th DCA 1983), on the basis of conflict with McLean v. State, 23 Fla. 281, 2 So. 5 (1887), and Winburn v. State, 28 Fla. 339, 9 So. 694 (1891). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash Vazquez.
The state charged Vazquez with aggravated assault, a third-degree felony. At trial the state attorney acknowledged that he would proceed on the lesser included offense of assault, a misdemeanor. After a nonjury trial, the court adjudicated Vazquez guilty of assault and imposed a fine.
On appeal Vazquez claimed that the circuit court had no jurisdiction to try him on a misdemeanor charge. The district court agreed, holding that the state had, in effect, nol prossed the felony charge, thereby divesting the circuit court of jurisdiction of the misdemeanor charge. The district court quashed the judgment and sentence and remanded for dismissal. We disagree with the district court’s ruling.
Section 26.012(2)(d), Florida Statutes (1981), gives exclusive original jurisdiction to circuit courts “[o]f all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.” As pointed out in both McLean and Winburn, jurisdiction in criminal cases is determined by the charge made in the indictment or information. The information against Vazquez charged him with committing a felony, thereby giving the circuit court jurisdiction over his case. When a felony is charged, a conviction of a lesser included offense is not void because the circuit court also has jurisdiction of all lesser included offenses. § 26.-012(2)(d); Winburn; McLean. Moreover, “[tjhere is no rule which requires the state to prove the [felony] charge for the court to retain jurisdiction.” Vazquez, 427 So. 2d at 1127 (Upchurch, J., dissenting) (emphasis in original).
The central problem in this case is whether the state dropped the felony charge, thereby leaving only the misdemeanor over which, standing alone, the circuit court had no jurisdiction. We agree with Judge Upchurch that the state did not drop the felony charge against Vazquez. As stated in an opinion of the attorney general:
Nolle prosequi is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or as to some of the persons accused, or altogether. Upon entry on the record, it amounts to a dismissal or nullification of the particular indictment or information and renders nugatory any proceedings carried on subsequently under the same indictment or information.
1958 Op. Att’y Gen. Fla. 058-169 (May 23, 1958) (emphasis supplied). The state made no formal entry on the record and, therefore, did not nol pros the felony charge. The words spoken by the trial court and the state attorney’s response are not sufficient to divest the circuit court of jurisdiction. If the defense had been .concerned about the procedure at the time, instead of only on appeal, it could have insisted that the state either present its case supporting the felony charge or else formally drop that charge on the record. We therefore quash the district court’s decision and remand for further proceedings consistent with this opinion.
It is so ordered.
ALDERMAN, C.J., and BQYD, OVER-TON, EHRLICH and SHAW, JJ., concur.
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Citator
Cited By (24 total)
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State v. Narcisco Rodriguez, 575 So. 2d 1262 (Fla. 1991)…1136 (Fla.1985), controls. In Phillips, we said an information charging a felony and misdemeanors arising out of the same circumstances is within the exclusive [*1264] subject matter jurisdiction of the circuit court. Id. at 1137; State v. Vazquez, 450 So. 2d 203 (Fla.1984); § 26.012(2)(d), Fla. Stat. (1987); see art. V, § 5, Fla. Const. However, the information must unambiguously charge a felony to invoke the circuit court’s jurisdiction. The narrow issue in Phillips was whether the information “sufficient…1 / 2
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Zanger v. State, 548 So. 2d 746 (Fla. 4th DCA 1989)…ule, which has developed in the context of jurisdiction of a particular court to try a particular case, is that jurisdiction is to be determined solely from the face of the information. McLean v. State, 23 Fla. 281, 2 So. 5 (1887); State v. Vazquez, 450 So. 2d 203 (Fla.1984); Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985); Brehm v. State, 427 So. 2d 825 (Fla. 3d DCA 1983). When an indictment or information fails to show that the circuit court had jurisdiction, a conviction based on such indictment or info…
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State v. Coble, 704 So. 2d 197 (Fla. 4th DCA 1998)…associated with a charged felony. The circuit court has exclusive jurisdiction over all misdemeanors associated with a charged felony. § 26.012(2)(d), Fla. Stat. (1998). See also, State v. Neth, 615 So. 2d 848 (Fla. 5th DCA 1993); State v. Vazquez, 450 So. 2d 203 (Fla.1984). On August 4, 1995, the state filed a notice of appeal in the Circuit Court appealing the above decision. The Circuit Court concluded that the issue raised above was of such importance that it should be decided by this court. As such, th…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McLean v. State, 23 Fla. 281 (Fla. 1887)
- Winburn v. State, 28 Fla. 339 (Fla. 1891)
- Cochran v. State, 427 So. 2d 1125 (Fla. 3d DCA 1983)
- Vazquez v. State, 427 So. 2d 1125 (Fla. 5th DCA 1983)