STATE OF FLORIDA, APPELLANT,
v.
RAYMOND G. THOMAS, APPELLEE
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The court held that amending an information after the jury is sworn has the legal effect of a nolle prosequi of the original information, thus barring a new charge due to double jeopardy.
The State charged the defendant with false imprisonment and misdemeanor battery. After the jury was sworn, the State amended the information to change…
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HARRIS, Judge.
On motion for clarification we substitute the following opinion.
The State charged Thomas in a three count information with false imprisonment and two counts of misdemeanor battery. Af-' ter the jury was sworn, the State amended its information changing the false imprisonment charge to kidnapping with the intent to inflict bodily harm or terrorize. On motion by the defense, the court dismissed the amended complaint because of double jeopardy. The State appeals; we affirm.
We agree with State v. Stell, 407 So. 2d 642 (Fla. 4th DCA 1981) and our earlier decision in State v. Belton, 468 So. 2d 495 (Fla. 5th DCA 1985) that the filing of an amended information, at least after the jury is sworn, has the legal effect of a nolle prose-qui of the original information.1 It would be inconsistent with the principles of double jeopardy if, after the defendant is placed in jeopardy for one crime, we permitted the State to amend the information to substitute another. The jury having been sworn before the filing of the amended information herein, jeopardy had attached.
AFFIRMED.
GOSHORN and PETERSON, JJ., concur. . Our decision in State v. Calle, 560 So. 2d 355 (Fla. 5th DCA 1990) did not address this issue. Further, we do not here suggest that an amendment to correct a minor error that does not substantively prejudice the defendant will be barred by double jeopardy. See Sanders v. State, 669 So. 2d 356 (Fla. 5th DCA 1996).
Cases With Similar Vibessemantic neighbors from the corpus
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Rivera v. State, 745 So. 2d 343 (Fla. 4th DCA 1999)…information during trial, either as to substantive or non-substantive matters, unless the defendant is prejudiced thereby. See State v. Anderson, 537 So. 2d 1373 (Fla.1989); Lachos v. State, 339 So. 2d 217 (Fla.1976). We distinguish State v. Thomas, 714 So. 2d 626 (Fla. 5th DCA 1998), where the trial court dismissed the state’s amended information, which was filed after the jury was sworn and which changed a false imprisonment charge to a charge of kidnapping with intent to inflict bodily harm or terrorize. T…
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Clements v. State, 814 So. 2d 1075 (Fla. 2d DCA 2002)…ed to become a nullity. State v. Anderson, 537 So. 2d 1373, 1374-75 (Fla.1989) (asserting “the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information”); State v. Thomas, 714 So. 2d 626, 627 (Fla. 5th DCA 1998) (holding that filing an amended information after the jury is sworn has the legal effect of a nolle prosequi of the original information). The court and the defense were informed of the second amended information through th…
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Scaife v. State, 764 So. 2d 827 (Fla. 2d DCA 2000)…tance. The defense objected to the amended information and made an oral motion to dismiss on double jeopardy grounds. The court denied the motion and continued the trial to August 31, 2000, with the jury to return. Seaife relies on State v. Thomas, 714 So. 2d 626 (Fla. 5th DCA 1998), to support his position that the amended information should be dismissed. In Thomas, the defendant was charged with false imprisonment and two misdemeanors. After the jury was sworn, the State amended the false imprisonment char…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Stell, 407 So. 2d 642 (Fla. 4th DCA 1981)
- State v. Belton, 468 So. 2d 495 (Fla. 5th DCA 1985)
- Sanders v. State, 669 So. 2d 356 (Fla. 5th DCA 1996)
- State v. Calle, 560 So. 2d 355 (Fla. 5th DCA 1990)