DORIS MOBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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SHARP, Judge.
Mobley appeals from the trial court’s revocation of her probation, and sentence of one year imprisonment. She pleaded nolo contendere to Count II of an information which stated in relevant part:
DORIS MOBLEY of the County of Her-nando, and the State of Florida, on the 18th day of November, 1981, in the County and State aforesaid did unlawfully and feloniously sell or deliver to another person, Cannabis, a controlled substance commonly known as Marijuana, in violation of Florida Statute 893.3(l)(a)(2) [893.-13(l)(a)(2)]_ (Emphasis supplied).
The information fails to allege that the delivery was for an amount in excess of twenty grams or that it was for consideration. The information charges Mobley with committing a felony, or alternatively, a misdemeanor.1
In Young v. State, 439 So. 2d 306 (Fla. 5th DCA 1983), we held that a similarly worded information did not properly invoke the jurisdiction of the circuit court, because it failed to charge the commission of a felony. See also Nelson v. State, 398 So. 2d 920 (Fla. 5th DCA 1981). However, we recently receded from that view. Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984). Accordingly, the judgment is
AFFIRMED.
ORFINGER, J., concurs.
COWART, J., dissents with opinion.
. State V. Stewart, 374 So. 2d 1381 (Fla.1979); Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So. 2d 668 (Fla.1973); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So. 2d 99 (Fla.1973).
COWART, Judge,
dissenting:
I dissent for the reasons stated in the dissent in Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984), and the dissent in Ramsey v. State, 456 So. 2d 973 (Fla. 5th DCA 1984).
SHARP, Judge.
On motion for rehearing, Mobley correctly points out that we misstated the fact she was sentenced for one year as to Count II, the ruling she was appealing. The record shows she was sentenced to thirty months on Count II.
We hereby grant the motion for rehearing, and amend our prior opinion as indicated above. Otherwise, it is affirmed. MOTION GRANTED; OPINION AMENDED.
ORFINGER and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Canty v. State, 471 So. 2d 676 (Fla. 1st DCA 1985)…te. Pope v. State, 458 So. 2d 327 (Fla. 1st DCA 1984). REVERSED and REMANDED for a new trial. BOOTH, C.J., and BARFIELD, J., concur. . We note that an issue identical to the one presented here is pending in the supreme court. See Mobley v. State, 460 So. 2d 383 (Fla. 5th DCA 1984), review granted, Case No. 66,301.…
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Mobley v. State, 475 So. 2d 1239 (Fla. 1985)…OVERTON, Justice. This cause is before us on petition to review a decision of the Fifth District Court of Appeal reported as Mobley v. State, 460 So. 2d 383 (Fla. 5th DCA 1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the decision of the district court of appeal on the authority of our decision in Fike v. State, 474 So. 2d 1192 (Fla.1985). It is so ordered. BOYD, C.J., and AD…
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Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991)…1192 (Fla.1985) we held that if an information alleges either a felony or a misdemeanor in the alternative, the circuit court, nevertheless, has jurisdiction. The misdemeanor allegation was held mere surplusage. Fike was followed by Mobley v. State, 460 So. 2d 383 (Fla. 5th DCA 1984), aff'd, 475 So. 2d 1239 (Fla.1985). In these cases allegations of felony even in the alternative was sufficient to invoke circuit court jurisdiction. Alleging a specific felony (third degree felony driving under the influence) —…
Authorities Cited (11 total)
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- State v. Pope, 283 So. 2d 99 (Fla. 1973)
- Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984)
- State v. Stewart, 374 So. 2d 1381 (Fla. 1979)
- Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973)
- Puzzo v. State, 439 So. 2d 306 (Fla. 4th DCA 1983)
- Young v. State, 439 So. 2d 306 (Fla. 5th DCA 1983)
- State v. Boley, 287 So. 2d 668 (Fla. 1973)
- Raunel Ramos v. State, 398 So. 2d 920 (Fla. 3d DCA 1981)
- Nelson v. State, 398 So. 2d 920 (Fla. 5th DCA 1981)