FREDERICK COLSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an objection to an unsigned information is waived if not raised before pleading to the charges, and such a defect does not constitute fundamental error that deprives the court of jurisdiction.
[1] A defendant waives a defect in an information, including the lack of a proper signature, if the issue is not raised by timely objection before pleading to the substantive…
[2] An unsigned information does not deprive a court of jurisdiction when an information describing a felony has been filed.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged via information with firearm carjacking, but the information was not signed by the state attorney. He pleaded not guilty without…
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PER CURIAM.
Appellant was charged, pursuant to an information, with firearm carjacking. In the space provided for the prosecutor’s signature, someone wrote, “State refused to sign.” Appellant plead not guilty without objection to the absence of the state attorney’s signature on the information. The jury convicted him of the lesser included offense of grand theft. The court sentenced him to the maximum punishment of ten years incarceration with a minimum of five years due to his habitual offender status. Appellant has failed to demonstrate reversible error in the points raised on appeal. However, his argument that the State’s refusal to sign the information constitutes fundamental error merits discussion.
The validity of an information not signed by the state attorney may only be attacked upon a timely objection. Gerlaugh v. Florida Parole Comm’n, 139 So. 2d 888 (Fla.1962). A defendant waives a defect in the information if he fails to object before pleading to the substantive charges. In Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993), the court considered the issue of “whether failure of an assistant state attorney to sign an information voids the charging document”:
In Dobson v. State, 434 So. 2d 332 (Fla. 3d DCA 1983), we held that an unsigned information was void, citing Sullivan v. Leatherman, 48 So. 2d 836 (Fla.1950). Subsequent to Sullivan, the supreme court adopted Florida Rule of Criminal Procedure 3.140(g), which provides that an objection to. the lack of a proper signature on an information is waived if the defendant fails to raise the issue prior to pleading to the substantive charges. The objection, made for the first time in this appeal, is untimely.
Montanez, 630 So. 2d at 1164. In Holt v. State, 516 So. 2d 25 (Fla. 3d DCA 1987), a defendant moved to dismiss the charges against him because an information had not been signed by a state attorney. Id. The district court affirmed because he made his motion after the jury had been sworn: “The clear terms of Rule 3.140(g) mandate the determination that the objection and motion came too late.” Id. at 25-26.
Appellant argues that the trial court lacked jurisdiction because the information was defective. He relies on State v. Anderson, 537 So. 2d 1373 (Fla.1989), and Hunter v. State, 358 So. 2d 557 (Fla. 4th DCA), cert. denied, 365 So. 2d 712 (Fla.1978), to support his argument that the defect in this information should be deemed fundamental error. In Anderson, the Florida Supreme Court stated that “jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state. It is also well settled that the parties may not confer jurisdiction on a court.” 537 So. 2d at 1374. Anderson is distinguishable because the court was describing a situation in which there was no information or indictment. Here, there was an information describing a felony which conferred subject matter jurisdiction on the circuit court. Hunter is also distinguishable because in that case, as a result of confusion about the constitutionality of Florida’s death penalty statute, the prosecutor mistakenly filed an information charging first degree murder rather than seeking a grand jury indictment. 358 So. 2d at 558. There having been no indictment whatsoever, that case is distinguishable for the same reason as Anderson. Appellant also incorrectly argues that constitutional requirements for informa-tions may not be waived; a defendant can waive a constitutional defect. Bryant v. State, 650 So. 2d 68, 70, n. 3 (Fla. 5th DCA 1994)(stating that double jeopardy protections and the right to a speedy trial may be waived), rev. denied, 659 So. 2d 270 (Fla.1995). Constitutional double jeopardy protections can be waived in a plea agreement if a defendant bargains for the terms and is aware of the length and nature of the sentences. See Melvin v. State, 645 So. 2d 448 (Fla.1994); Novaton v. State, 634 So. 2d 607 (Fla.1994).
Appellant has failed to demonstrate fundamental error, and he has also failed to demonstrate reversible error. In the trial court, he did not at any time object to the State’s refusal to sign the information. “A defendant may not thwart the ends of justice by sitting on a technical defect which has occasioned him no prejudice, holding it in reserve as a trap to spring on the State in the event the jury renders an adverse verdict.” Asmer v. State, 416 So. 2d 485, 487 (Fla. 4th DCA 1982).
Accordingly, we affirm appellant’s conviction and sentence.
DELL, WARNER and KLEIN, JJ., concur.
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RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)…nsider, nor did he invite the error in any other manner. Ray simply stipulated to a plea that he entered the previous day before the same presiding judge. We next consider the issue of prejudice. The State invites our attention to Colson v. State, 717 So. 2d 554 (Fla. 4th DCA 1998), where this Court affirmed a defendant’s conviction in spite of the fact that the defendant had been prosecuted using an unsigned information. This Court reasoned that Colson had not been prejudiced and stated that a “defendant m…
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Winter v. State, 781 So. 2d 1111 (Fla. 1st DCA 2001)…So. 2d 1373, 1374 (Fla.1989) (holding “jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state”); cf. Colson v. State, 717 So. 2d 554, 555 (Fla. 4th DCA 1998) (agree [*1115] ing with Anderson, but distinguishing it where an information was actually filed but only had a “technical defect”, occasioned by lack of the prosecutor’s signature). We conclude that the motion to dismiss did…
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Sawyers v. State (Fla. 2d DCA 2026)…See DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988); State v. Gray, 435 So. 2d 816, 818 (Fla. 1983); Castillo v. State, 929 So. 2d 1180, 1182 (Fla. 4th DCA 2006); Lacey v. State, 831 So. 2d 1267, 1271 (Fla. 4th DCA 2002) (quoting Colson v. State, 717 So. 2d 554, 555 (Fla. 4th DCA 1998)). That framework aligns with counsel's duty to the client: timely objections protect the client from waiver, whereas silence risks forfeiture of nonfundamental claims. [*4] were fully aware from the outset that a conviction…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- State v. Anderson, 537 So. 2d 1373 (Fla. 1989)
- Melvin v. State, 645 So. 2d 448 (Fla. 1994)
- Safie v. Safie, 416 So. 2d 485 (Fla. 3d DCA 1982)
- Gerlaugh v. Fla. Parole Comm'n, 139 So. 2d 888 (Fla. 1962)
- Sullivan v. Leatherman, 48 So. 2d 836 (Fla. 1950)
- Dobson v. State, 434 So. 2d 332 (Fla. 3d DCA 1983)
- Bryant v. State, 650 So. 2d 68 (Fla. 5th DCA 1994)
- Holt v. State, 516 So. 2d 25 (Fla. 3d DCA 1987)
- Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993)