LAURIE B. MADISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that dismissing a felony DUI charge based on invalid prior convictions does not divest the circuit court of jurisdiction to proceed on the surviving misdemeanor DUI.
Appellant was charged with felony DUI based on prior convictions. He moved to dismiss, arguing two prior convictions were uncounseled. The trial court…
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SHIVERS, Judge.
Appellant Madison was charged in June 1987 with felony DUI in violation of section 316.193(2)(b), Florida Statutes, which provides that “[a]ny person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree....” In November 1987, appellant filed a motion to dismiss pursuant to Fla.R. Crim.P. 3.190(c)(4), alleging that two of his three prior DUI convictions were uncoun-seled and, therefore, could not be considered in charging him with felony DUI. The trial court dismissed the felony charge, retained jurisdiction over the underlying misdemeanor DUI on the basis of this court’s decision in Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985), and held that the surviving misdemeanor would be assigned to a county judge.
We affirm the trial court’s retention of jurisdiction over the surviving misdemean-or. In Allen, this court held that the granting of a (c)(4) motion to dismiss a charge of felony petit theft under section 812.014(2)(c), Florida Statutes (1981), based solely on the invalidity of the prior convictions, did not divest the circuit court of jurisdiction to proceed to trial on the surviving misdemeanor petit theft.1 We find this holding to be equally applicable to felony DUI prosecutions under section 316.-193(2)(b), Florida Statutes.
In affirming the circuit court’s retention of jurisdiction, however, we note that it is the function of the chief judge of each circuit court to assign other judges to temporary service in the same circuit. Rule of Judicial Administration 2.050(b)(4).
ZEHMER and BARFIELD, JJ., concur. . In language similar to that used in section 316.193(2)(b), section 812.014(2)(c), Florida Statutes (1981) [now section 812.014(2)(d), Florida Statutes (1987)] provides that: ‘‘[u]pon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree...."
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Davis v. State, 710 So. 2d 116 (Fla. 2d DCA 1998)…ister, 619 So. 2d at 500. Appellant’s motion seeks to have his judgment and sentence vacated. Should the trial court eventually grant appellant’s motion, it may retain jurisdiction over any resulting misdemeanor DUI conviction. See Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989); Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985). Affirmed in part, reversed, and remanded. FRANK, A.C.J., and ALTENBERND and BLUE, JJ., concur.…
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Woodbury v. State, 110 So. 3d 17 (Fla. 2d DCA 2013)…eed through trial on the surviving misdemeanor petit theft.” 463 So. 2d 351, 361 (Fla. 1st DCA 1985). The First District extended this holding, finding it “equally applicable to felony DUI prosecutions under section 316.193(2)(b).” Madison v. State, 540 So. 2d 189, 190 (Fla. 1st DCA 1989). We similarly conclude here that the circuit court maintained jurisdiction over the lesser-included misdemeanor DUI when it granted Woodbury’s motion to dismiss the felony DUI. The words spoken by the trial court at the hear…
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State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000)…lysis employed in Jackson is fairly applied to section 316.193. We remand, however, as notwithstanding the proper dismissal of the felony charge, the trial court retains jurisdiction over the lesser-included surviving misdemeanor. Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989). Jurisdiction is determined solely from the face of an information or indictment. State v. Vazquez, 450 So. 2d 203 (Fla.1984). We can discern no reason for creating an exception to that principle in this instance. GUNTHER and PO…
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- Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985)