RICHARD JAMES ACTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard James Acton pled nolo contendere to cocaine delivery charges and was sentenced to three years imprisonment and a $50,000 fine. The issue was whether the court was authorized to impose the $50,000 fine when the information cited the wrong statute—one carrying a maximum $10,000 fine rather than the trafficking statute requiring a mandatory $50,000 fine. The appellate court affirmed, holding that the statutory citation was surplusage and the record clearly showed the defendant was charged with and pled to trafficking.
The appellate court affirmed the sentence, holding that the reference to section 893.13 in the information was surplusage because the defendant was not misled to his prejudice. The court concluded it was evident from the record that Acton had been charged with trafficking under section 893.135, that the plea bargain was premised on that statute's requirements, and that the colloquies at plea entry and sentencing constituted a sufficient amendment to the information.
[1] A reference to a statutory section in an information may be considered surplusage if the defendant was not misled to their prejudice and the charging instrument clearly i…
[2] A colloquy on the record during plea entry and sentencing can serve to amend an information if there is any doubt about the sufficiency of the original charge.
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“Under the circumstances of this case, we view the reference to section 893.13 in count I of the information as surplusage because the appellant was not misled to his prejudice.”
Establishes the court's application of the surplusage doctrine to overlook the statutory citation error.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceActon was charged with delivery of cocaine in excess of twenty-eight grams under section 893.13 (count I) and conspiracy to traffic in cocaine (count …
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GRIMES, Judge.
Appellant was charged with delivery of cocaine in excess of twenty-eight grams (count I) and conspiracy to traffic in cocaine by delivering an amount in excess of twenty-eight grams (count II).
Pursuant to a plea bargain, appellant pled nolo con-tendere. The bargain contemplated a three year sentencing cap and recognized that the judge intended to impose a $50,000 fine. At the request of appellant’s lawyer, the judge stated on the record that he was imposing a $50,000 fine only because he believed that the statute obligated him to do so. Thereafter, on count I, the court sentenced appellant to three years in prison and levied a $50,000 fine. No penalty was imposed for count II. Appellant now contends that the court was not authorized to levy the $50,000 fine against him. The problem arises from the fact that in charging appellant in count I with delivery of more than twenty-eight grams of cocaine, the information referred to section 893.13, Florida Statutes (1983), rather than section 893.135, Florida Statutes (1983).
Conviction of delivering cocaine under section 893.13 carries a maximum fine of $10,000, whereas a conviction of trafficking through the delivery of more than twenty-eight grams of cocaine under section 893.135(l)(b)l. requires a mandatory fine of $50,000.
Under the circumstances of this case, we view the reference to section 893.13 in count I of the information as surplusage because the appellant was not misled to his prejudice. Youngker v. State, 215 So. 2d 318 (Fla. 4th DCA 1968).
The record reflects that it was evident to all concerned that appellant had been charged with trafficking under count I. The plea bargain was clearly premised upon the sentencing requirements of section 893.135, and the prosecutor laid a factual basis under that statute. Appellant’s lawyer was even debating the mandatory aspect of the imposition of the $50,000 fine as specified in section 893.135(l)(b)l. If there was any doubt that count I sufficiently charged the crime of trafficking, the colloquies at the entry of the plea and sentencing were sufficient to constitute an amendment to the information. Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA), cert. denied, 378 So. 2d 348 (Fla.1979).
We affirm but direct that the judgment be amended to reflect a conviction for trafficking under count I.
RYDER, C.J., and CAMPBELL, J., concur.
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Citator
Cited By
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State v. Anderson, 537 So. 2d 1373 (Fla. 1989)…thorized prosecutors. See Gerlaugh v. Florida Parole Commission, 139 So. 2d 888 (Fla.1962), and cases discussed therein. Cf. Suarez v. State, 95 Fla. 42, 115 So. 519 (1928) (failure to object waives unfiled amendment to information); Acton v. State, 457 So. 2d 540 (Fla. 2d DCA 1984) (erroneous statutory citation in information waived by plea without objection and colloquy); Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979), and cases discussed therein (failure to properly allege crime establishing jurisdic…
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Anderson v. State, 526 So. 2d 106 (Fla. 4th DCA 1988)…rather than particular legal issues. Thus, the Andrews court cannot be said to have been without jurisdiction; the court here was without jurisdiction because the information under which it was trying the case had been extinguished. Acton v. State, 457 So. 2d 540, 541 (Fla. 2d DCA 1984), is somewhat analogous to Andrews. In Acton the defendant was fined a greater amount under a statute not mentioned in the information than the amount stated in the statute that was mentioned there. It was held that the nolo p…1 / 2
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Reiner de Quesada v. State (Fla. 3d DCA 2019)…m’n, 139 So. 2d 888, 890 (Fla. 1962) (“[A]dvantage must be timely taken of the failure to comply with the constitutional provisions [of filing an information by authorized prosecutors] else they will be deemed to have been waived.”); Acton v. State, 457 So. 2d 540 (Fla. 2d DCA 1984) (erroneous statutory citation in information waived by plea without objection and colloquy); Shanklin v. State, 369 So. 2d 620, 622 (Fla. 2d DCA 1979) (“[A]ppellant’s plea of guilty to the crime of battery of a law enforcement off…
Authorities Cited
- Youngker v. State, 215 So. 2d 318 (Fla. 4th DCA 1968)
- Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)