JOHN M. SHAFER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court vacated felony DUI conviction because the state failed to allege specific prior DUI convictions in the information and jury instructions violated the defendant's presumption of innocence by referencing the felony charge.
A felony DUI conviction must be vacated when the information fails to allege specific prior DUI convictions and jury instructions reference the felony designation, violating the defendant's presumption of innocence.
[1] A felony DUI conviction must be vacated when the information fails to allege the specific prior DUI convictions required to elevate the offense to a felony and jury instr…
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Join FLexlaw to unlock all legal intelligence“by withholding from the jury any allegations or facts about the alleged prior DUI offenses”
Rodriguez requirement that jury instructions protect defendant's presumption of innocence regarding prior DUI convictions
John M. Shafer was convicted of felony DUI. The information did not allege the specific prior DUI convictions required to support the felony charge, a…
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PER CURIAM.
John M. Shafer appeals his conviction for “felony DUI.” We vacate the judgment and sentence on the authority of State v. Rodriguez, 575 So. 2d 1262 (Fla.1991), for the reason that the Florida Supreme Court has concluded that the state must allege the specific prior DUI convictions in the information, allegations which are absent from the instant case. Rodriguez also requires protection of the defendant’s presumption of innocence “by withholding from the jury any allegations or facts about the alleged prior DUI offenses.” 575 So. 2d at 1266. We recognize, however, that the jurors might understand that the charge is a felony DUI, merely because the matter is before the circuit court, not the county court.
The defendant’s attorney in the instant case specifically objected to the inclusion in the instructions to the jury that his client was charged with a felony DUI. Consistent with the requirements of Rodriguez, we vacate the judgment and sentence imposed. Since, unlike Rodriguez, the record contains sufficient evidence of the prior DUIs, we remand to the trial court for a new trial on the felony DUI charge. See Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987).
Judgment and sentence VACATED; REMANDED for new trial.
W. SHARP, PETERSON and GRIFFIN, JJ., concur.
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Citator
Cited By
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Leone v. State, 590 So. 2d 29 (Fla. 5th DCA 1991)…AUSE REMANDED. DAUKSCH and SHARP, W., JJ., concur. . See Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991) and cases cited therein. . This point distinguishes this case from the "prior offense" issues in Hope v. State, supra, and Shafer v. State, 583 So. 2d 417 (Fla. 5th DCA 1991). . The State also argues that this issue has not been preserved for review because no objection was made to the sentence imposed in the trial court. However, imposition of a sentence in excess of the statutory maximum for the cr…
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Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991)…tion is fatally defective for failure to charge a crime. See State ¶. Wimberly, 459 So. 2d 456 (Fla. 5th DCA 1984); Compare DuBoise v. State, 520 So. 2d 260 (Fla. 1988); State v. Dye, 346 So. 2d 538 (Fla. 1977). SHAFER v. STATE In Shafer v. State, 583 So. 2d 417 (Fla. 5th DCA 1991), a panel of this court reversed a felony DUI judgment and sentence as required by State v. Rodriguez, for the reason that the information failed to allege the three or more DUI convictions that are an essential element of the sub…1 / 2
Authorities Cited
- State v. Narcisco Rodriguez, 575 So. 2d 1262 (Fla. 1991)
- Montana v. Hall, 481 U.S. 400 (U.S. 1987)