THE STATE OF FLORIDA, APPELLANT,
v.
GAYETY THEATRES, INC., A FLORIDA CORPORATION, APPELLEE
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Florida appeals the dismissal of a felony obscenity charge against Gayety Theatres. The trial court dismissed for lack of subject matter jurisdiction because the information failed to allege facts sufficient to establish felony status under the obscenity statute. The appellate court affirms, holding that while the obscenity statute can create a felony charge independently, the information must allege sufficient facts to trigger circuit court jurisdiction.
While the obscenity statute can create a felony charge based on a prior pornography conviction independent of enhancement provisions, a criminal information must allege sufficient facts to establish felony status and activate circuit court jurisdiction. The information here failed to do so merely by its title; it must affirmatively allege facts consistent with section 847.011(1)(a).
[1] A criminal information must allege sufficient facts to establish the circuit court's exclusive felony jurisdiction.
[2] The title of a criminal information does not constitute a part of the information itself.
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“The state rightly asserts that the obscenity statute, on its face, creates a felony based on a prior pornography conviction independent of the enhancement provisions of section 775.084.”
Establishes that the obscenity statute can create a felony charge without relying on enhancement provisions
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Join FLexlaw to unlock all legal intelligenceThe state filed felony charges against Gayety Theatres under Florida's obscenity statute, section 847.011(1)(a). The defendant filed a motion to dismi…
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PER CURIAM.
The state appeals an order dismissing an information which charged the defendant with a felony obscenity offense, pursuant to section 847.011(l)(a), Florida Statutes (Supp.1986). The trial court dismissed the information for want of subject matter jurisdiction, and we affirm.
Upon the state’s filing of felony charges for violation of section 847.011 (obscenity statute), Gayety Theatres filed a motion to dismiss. The court granted the dismissal holding that prior convictions of the defendant were outside the five-year limita tion period of section 775.084, Florida Statutes (1985) (enhancement statute) and that the obscenity statute specifically required reference to the enhancement statute in order to bring felony charges. The state could not bring misdemeanor charges because such jurisdiction had already expired. Thus, the case was dismissed. Claiming reversible error, the state appeals.
The state rightly asserts that the obscenity statute, on its face, creates a felony based on a prior pornography conviction independent of the enhancement provisions of section 775.084. The enhancement statute, and its requirement that there be two prior convictions within five years, only applies when the state seeks to punish the defendant to an obscenity charge as an habitual criminal; its use is optional. To support this contention, the state correctly relies upon the case of State v. Harris, 856 So. 2d 315 (Fla.1978) where the supreme court held that the petit larceny statute creates a substantive offense distinguishable from the enhancement statute.
The rub in the present case is that while the criminal information at issue is titled a felony, no prior conviction is alleged, nor does the information track section 847.011(l)(a). Hence, the information does not allege sufficient facts to enable the state to charge the defendant with a felony. Fla.R.Crim.P. 3.140(d)(1). The title to an information does not constitute a part thereof. State v. Cunningham, 380 S.W. 2d 401, 403 (Mo.1964); Roberson v. State, 362 P. 2d 1115, 1117 (Okla.Crim.App.1961); Caples v. State, 3 Okla.Crim. 72, 104 P. 493 (1909). A criminal information must allege sufficient facts to create and activate a circuit court’s exclusive felony jurisdiction. Young v. State, 439 So. 2d 306 (Fla. 5th DCA 1983); Christopher v. State, 397 So. 2d 406 (Fla. 5th DCA 1981); § 26.012(2)(d), Fla.Stat. (1985).
Our affirmance, therefore, acknowledges the state’s ability to allege a felony based solely on section 847.011 within the jurisdiction of the circuit court. The information before us, however, simply failed to do so.
Affirmed.
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Citator
Cited By
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Narcisco Rodriguez v. State, 553 So. 2d 1331 (Fla. 3d DCA 1989)…rge a felony because of prior convictions and cites Pritchard v. State, 528 So. 2d 1272 (Fla. 1st DCA 1988). We think the proper procedure is to include in the charging document identifiable prior convictions. Compare State v. Gayety Theatres, Inc., 521 So. 2d 231 (Fla. 3d DCA 1988) and Brehm v. State, 427 So. 2d 825 (Fla. 3d DCA 1983). We specifically decline to follow Pritchard and recognize conflict therewith. Therefore the motion to dismiss should have been granted and the convictions of driving under the…
Authorities Cited
- Christopher v. State, 397 So. 2d 406 (Fla. 5th DCA 1981)
- Puzzo v. State, 439 So. 2d 306 (Fla. 4th DCA 1983)
- Young v. State, 439 So. 2d 306 (Fla. 5th DCA 1983)