STATE OF FLORIDA, APPELLANT,
v.
BRIAN EDWARD SWARTZ, APPELLEE

Fla. 4th DCA | 1999-05-05
No. 98-2600
FARMER and KLEIN, JJ„ concur.
734 So. 2d 448 Florida District Court of Appeal, Fourth District (1999) Positive Treatment
Cited by 20 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The State appeals the dismissal of a felony driving under the influence charge against Brian Swartz. The Fourth District Court of Appeal reverses the dismissal, holding that the trial court improperly relied on an unpublished per curiam affirmance and that Swartz's prior DUI convictions from 1974 and 1976 are not too remote in time to satisfy the felony DUI statute's requirement of three or more prior convictions.


Holding

The court reversed the dismissal, holding that: (1) a per curiam affirmance without written opinion has no precedential value and the trial court improperly relied on it; (2) three or more prior DUI convictions is an element of felony DUI, not four; and (3) the statute is silent on temporal remoteness, so Swartz's 1974 and 1976 convictions are not too remote to satisfy the statute.


Headnotes

[1] A per curiam affirmance decision without a written opinion has no precedential value and should not be relied upon for anything other than res judicata.

[2] The existence of three or more prior DUI convictions is an element of the charge of felony DUI.

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Key Quotes

“a per curiam affirmance decision without written opinion has no precedential value and should not be relied on for anything other than res judicata”

Establishes the fundamental principle that unpublished per curiam affirmances cannot serve as precedent, which was the primary error in the trial court's dismissal

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Facts & Procedural History

Brian Swartz was charged with felony DUI under Florida Statute section 316.193(1) & (2)(b). Swartz had three prior DUI convictions occurring in 1974, …

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Opinion of the Court
POLEN, J.

POLEN, J.

The state appeals the dismissal of an information charging Brian Swartz with felony driving under the influence pursuant to section 316.193(1) & (2)(b). We reverse and remand for reinstatement of the information.

Swartz filed several unsworn motions seeking dismissal of the information on various grounds including an alleged lack of circuit court jurisdiction based either on the remoteness of two of his three prior DUI convictions, or his contention the felony DUI statute requires four DUI convictions before jurisdiction vests in the circuit court. The circuit court dismissed Swartz’s information relying on a per cu-riam affirmance this court issued in State v. Breen, 709 So. 2d 546 (Fla. 4th DCA 1998).

Swartz’s citation before the trial court to our per curiam affirmance decision in Breen was improper, as was the trial court’s reliance on that per curiam affirmance. As has been stated countless times before, a per curiam affirmance decision without written opinion has no precedential value and should not be relied on for anything other than res judicata. E.g., Dep’t of Legal Affairs v. District Court of Appeal, 5th Dist, 434 So. 2d 310, 311 (Fla.1983).

Without a written opinion, the trial court could only speculate regarding the rationale underlying this court’s per cu-riam affirmance decision. Id. at 312-13. By way of illustration, our court file in Breen reveals it was unnecessary to reach the issue of whether jurisdiction vested in the circuit court on Breen’s fourth DUI offense because the state failed to file a traverse to Breen’s sworn rule 3.190(c) motion to dismiss which alleged an invol untary prior conviction.

Thus, the trial court’s reliance on our per curiam affir-mance in Breen was misplaced.

Contrary to the argument Swartz advanced below, this court has recently reiterated the well settled rule that “the existence of three or more prior DUI convictions” is an element of the charge of felony DUI under section 316.193(2)(b), Florida Statutes (1995). Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998) (citing State v. Woodruff, 676 So. 2d 975, 977 (Fla.1996)).

Thus, the dismissal of Swartz’s information on the basis a fourth DUI conviction was an element of felony DUI was in error. The only other basis on which the dismissal could be upheld is if Swartz was correct in asserting that two of his prior DUI convictions occurring in 1974 and 1976 were too remote in time or “stale” to form the requisite three DUI convictions necessary to bring the charge of felony DUI. This argument is properly before this court because an appellate court will affirm an order on appeal where it is sustainable on an alternate theory revealed by the record. Freeman v. State, 589 So. 2d 368 (Fla. 1st DCA 1991).

Based on the fact section 316.193(2)(b) is silent as to when or where the previous DUI convictions must have taken place, we conclude Swartz’s prior convictions are not too remote to form the requisite three DUI convictions. See Thompson v. State, 553 So. 2d 153 (Fla.1989) (rejecting remoteness argument and upholding use of 1950 rape conviction as aggravating circumstance because statute defining aggravating circumstances was silent as to when or where previous conviction must have taken place).

Therefore, we reverse the order dismissing Swartz’s information and remand for reinstatement of the information.

FARMER and KLEIN, JJ„ concur.


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Citator

Cited By (12 total)

  • ST. Fort v. Post, 902 So. 2d 244 (Fla. 4th DCA 2005)
    …Fla. 3d DCA 1998). We reiterate that a per curiam affirmance without written opinion, even one with a written dissent, has no precedential value and should not be relied on for anything other than res judicata. As this court held in State v. Swartz, 734 So. 2d 448 (Fla. 4th DCA 1999): As has been stated countless times before, a per curiam affirmance decision without written opinion has no precedential value and should not be [*249] relied on for anything other than res judicata. Without a written opinion, t…
  • TRW Auto. U.S. LLC v. Anibal Oscar Papandopoles, 949 So. 2d 297 (Fla. 4th DCA 2007)
    …clusive effect in Papandopoles and Yampa. We agree. First, Nowell has no precedential value because it was a per curiam affirmance. See St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 248-49 (Fla. 4th DCA 2005) (citing State v. Swartz, 734 So. 2d 448 (Fla. 4th DCA 1999)) (acknowledging that “a per curiam affirmance without written opinion, even one with a written dissent, has no prece-dential value and should not be relied on for anything other than res judicata”). Second, the trial court erred…
  • Hicks v. Am. Integrity Ins. Co. of Fla., 241 So. 3d 925 (Fla. 5th DCA 2018)

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