STATE OF FLORIDA, APPELLANT,
v.
CONNIE M. STRICKLER, APPELLEE
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Florida appealed the dismissal of a driving-without-a-license charge against Connie Strickler after the trial court granted a post-evidence motion for judgment of acquittal based on a gender misidentification in the information. The appellate court affirmed the dismissal because double jeopardy precluded retrial, despite finding the motion should have been raised pre-trial.
The appellate court affirmed the dismissal because once jeopardy attached and the trial court granted the motion after the close of the State's case, double jeopardy precluded further prosecution, even though the motion was untimely and should not have been considered.
[1] A motion challenging the sufficiency of an information must be raised by a pre-trial motion to dismiss, and failure to do so constitutes a waiver of the argument.
[2] A motion for judgment of acquittal, when styled as such but in essence challenging the sufficiency of the information, may be considered an untimely motion to dismiss if…
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Join FLexlaw to unlock all legal intelligence“Attacks on the sufficiency of an indictment are properly raised by a pre-trial motion to dismiss the indictment. See Fla. R.Crim. P 3.190(b). Failure to do so constitutes waiver of the argument.”
Establishes the proper procedural mechanism for challenging information sufficiency and the consequences of failure to do so timely
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice stopped Strickler for a routine traffic violation and discovered his license was suspended. The arresting officer charged Strickler with drivin…
The full statement of facts, procedural history, and disposition for this case are member content.
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QUINCE, Judge.
This case arises from Connie M. Strickler’s arrest for driving without a license. After presentation of the State’s case, Strickler raised the sufficiency of the information in a motion for judgment of acquittal. The trial court dismissed the information by granting the motion. Because double jeopardy precludes retrial, we are constrained to affirm.
The facts in this case are largely undisputed. The police stopped Strickler for a routine traffic violation. During the stop, the arresting officer discovered that Strickler’s license had been suspended and that he was driving without a license. In the heading of the information, Connie M. Strickler was identified as a white male. However, the body of the information, while otherwise correct, incorrectly identified Strickler as a female.
Following the State’s presentation of its case, Strickler raised the insufficiency of the information for the first time as a motion for judgment of acquittal. The trial court, relying on Troyer v. State, 610 So. 2d 530 (Fla. 2d DCA 1992), held that the gender misidentification in the body of the information took precedence over the correct gender designation in the heading and invalidated the information.
Attacks on the sufficiency of an indictment are properly raised by a pre-trial motion to dismiss the indictment. See Fla. R.Crim. P 3.190(b). Failure to do so constitutes waiver of the argument. See Fla. R.Crim. P. 3.190(c). Although styled a motion for judgment of acquittal, Strickler’s motion was in essence a motion to dismiss the information. As such, the motion was untimely and should not have been considered. See State v. James, 626 So. 2d 259 (Fla. 5th DCA 1993).
Regrettably, the trial court permitted Strickler to lodge his untimely challenge to the sufficiency of the information. Had this issue been properly raised prior to trial, double jeopardy considerations would not preclude a reversal distinguishing Troyer, which involved a discrepancy in the offense designated in the heading of the information and the offense described in the body of the information. In Troyer, the discrepancy resulted in the defendant’s conviction for an uncharged crime. See Fla. R.Crim. P. 3.140(o). However, the granting of the motion after the close of the State’s case raises an unavoidable double jeopardy problem. See Thompson v. Cranford, 479 So. 2d 169 (Fla. 3d DCA 1985) (jeopardy attaches upon the trial court’s receipt of evidence in a non-jury case). Accordingly, further prosecution of this criminal violation is foreclosed. See State v. Kennon, 652 So. 2d 396 (Fla. 2d DCA 1995).
We, therefore, affirm the dismissal of this case.
PARKER, C.J., and ALTENBERND, J., concur.
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State v. Nichols, 892 So. 2d 1221 (Fla. 1st DCA 2005)…a. Franklin Cty. Ct. Oct. 6, 2000). . A defendant can also, and more efficiently, challenge a statute under which she is charged as unconstitutional by motion to dismiss under Rule 3.190, Florida Rules of Criminal Procedure. See State v. Strickler, 712 So. 2d 1218, 1218 (Fla. 2d DCA 1998). On review in the present case, the circuit court treated the trial court's ruling on the constitutional question as a dismissal, even though neither defendant moved to dismiss on this ground. . As to count four, the county…
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KEE v. State, 727 So. 2d 1094 (Fla. 2d DCA 1999)…sworn and impaneled to hear evidence. See State v. Foster, 438 So. 2d 501 (Fla. 2d DCA 1983). The State had no authority to refile the subject charge after jeopardy had attached. Thus, this court must reverse the conviction. See State v. Strickler, 712 So. 2d 1218 (Fla. 2d DCA 1998). Accordingly, this matter is remanded to the trial court to enter a judgment of acquittal for Kee’s conviction for felony fleeing and eluding. Reversed and remanded with directions. ALTENBERND, A.C.J., and GREEN and SALCINES, JJ…
Authorities Cited
- Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)
- Troyer v. State, 610 So. 2d 530 (Fla. 2d DCA 1992)
- State v. Kennon, 652 So. 2d 396 (Fla. 2d DCA 1995)
- Mingo v. State, 626 So. 2d 259 (Fla. 4th DCA 1993)