GERALD MCMILLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald McMillan appealed his convictions for armed robbery with a firearm and resisting an officer without violence, arguing the information charged him with armed robbery with a weapon rather than with a firearm, and that this violated his due process and separation of powers rights. The Fifth District Court of Appeal affirmed, holding that the information's specifications sufficiently alleged all elements of armed robbery with a firearm and provided McMillan with adequate notice of the charges against him.
The court held that the information sufficiently charged armed robbery with a firearm because the specifications of the information alleged every essential element of the crime and adequately notified McMillan that he was being charged with committing robbery while carrying a firearm. The technical defect in the caption—charging 'weapon' instead of 'firearm'—was not fatal because McMillan had sufficient notice of the crime for which he was being tried.
[1] A defendant waives a defect in a charging document if the defect is not challenged prior to trial, unless the document is so fundamentally defective that it cannot suppor…
[2] A charging document is not fundamentally defective if it contains technical inaccuracies but sufficiently notifies the defendant of the elements of the offense charged.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where a defendant waits until after the State rests its case to challenge the propriety of an indictment, the defendant is required to show not that the indictment is technically defective but that it is so fundamentally defective that it cannot support a judgment of conviction.”
Establishes the legal standard for challenging charging documents that are not challenged pre-trial
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Join FLexlaw to unlock all legal intelligenceMcMillan was charged by information with armed robbery with a weapon, in violation of Florida Statute 812.13(1) & (2)(b). The information's caption ch…
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PLEUS, J.
McMillan appeals his convictions for armed robbery with a firearm and resisting an officer without violence. He argues that the trial court erred in (1) allowing the state to reopen its case, (2) instructing the jury on armed robbery with a firearm when that offense was not charged, (3) violating separation of powers by charging McMillan with an offense -not charged in the information, and (4) violating McMillan’s due process rights by convicting him of an offense not charged in the information. We affirm.
All of McMillan’s arguments are founded upon his. assertion that he was charged with armed robbery with a weapon rather than armed robbery with a firearm. McMillan was charged by information as follows:1
COUNT ONE
CHARGE: ARMED ROBBERY WITH A WEAPON, in violation of F.S. 812.13(1) & (2)(b)
SPECIFICATIONS OF CHARGE: In that GERALD .CHRISTOPHER MCMILLAN ... did then and there .unlawfully by force, violence, assault or putting in.fear take away from the person or custody of K. PATEL certain property .of value, to wit: CURRENCY, the property of THRIFT LODGE HOTEL, with the intent to deprive K. PATEL and/or THRIFT LODGE MOTEL of their rights to said property or a benefit therefrom and, in the course of committing said' robbery, carried a weapon, to wit: A FIREARM.
The state correctly notes that McMillan failed to challenge the information prior to trial as required by Florida Rule of Criminal Procedure 3.190. “Where a defendant waits until after the State rests its case to challenge the propriety of an indictment, the defendant is re quired to show not that the indictment is technically defective but that it is so fundamentally defective that it cannot support a judgment of conviction.” Ford v. State, 802 So. 2d 1121, 1130 (Fla.2001). This rule is designed to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial. Id. Where the charging document is merely imperfect or imprecise, the failure to challenge it by motion to dismiss waives defect. State v. Wimberly, 459 So. 2d 456 (Fla. 5th DCA 1984). On the other hand, where an information totally omits an essential element of the crime or is so vague, indistinct or indefinite that he is misled or exposed to double jeopardy, it is fundamentally defective. Id. The overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried.
In the instant case, the caption charged armed robbery with a weapon and recited the statute applicable to that crime. These technical defects are not fatal. See Fla. R.Crim. P. 3.140(d)(1); Sanders v. State, 386 So. 2d 256, 257 (Fla. 5th DCA 1980). The determinative questions are whether the information charged every element of the offense of robbery with a firearm and whether it misled McMillan. The specifications of the information alleged each essential element of the crime of armed robbery with a firearm. See §§ 812.13(1) and (2)(a), Fla. Stat. (2001). The information sufficiently notified McMillan that he was charged with committing a robbery by carrying a firearm. See Mosely v. State, 688 So. 2d 999 (Fla. 2d DCA 1997). McMillan has failed to demonstrate otherwise. Sanders, 386 So. 2d at 257.
Having concluded that the information sufficiently charged robbery with a firearm, we find that it was unnecessary for the state to prove that the firearm was operable. See, e.g., St. Hilaire v. State, 778 So. 2d 479 (Fla. 4th DCA 2001); Ahlberg v. State, 541 So. 2d 775 (Fla. 3d DCA 1989). Thus, McMillan’s argument that the trial court abused its discretion in allowing the state to reopen its case is rendered moot. Even if it were not moot, this court has previously rejected the exact argument made by McMillan in K.K. v. State, 717 So. 2d 193 (Fla. 5th DCA 1998).
Likewise, McMillan’s remaining arguments must fall because the foundation upon which they were constructed has proven faulty. Because we find that the information sufficiently charged armed robbery with a firearm, McMillan’s arguments regarding jury instructions, due process and separation of powers cannot stand. Accordingly, we affirm his conviction.
AFFIRMED.
COBB and PETERSON, JJ., concur. . McMillan was charged in Count 2 with resisting an officer without violence. That charge is not relevant to this appeal.
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Perley v. State, 947 So. 2d 672 (Fla. 4th DCA 2007)…v. State, 919 So. 2d 557, 559 (Fla. 5th DCA 2005) (quoting Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005)). “The overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried.” McMillan v. State, 832 So. 2d 946, 948 (Fla. 5th DCA 2002). The information was not fundamentally defective in and of itself. Count two of the information fully laid out the elements of escape, even though it did not include any factual specifics surrounding the escape which would…
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State v. Burnette, 881 So. 2d 693 (Fla. 1st DCA 2004)…been cured). An information is fundamentally defective only where it totally omits an [*695] essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. See McMillan v. State, 832 So. 2d 946 (Fla. 5th DCA 2002). As explained in DuBoise v. State, 520 So. 2d 260 (Fla.1988), the “reason for this provision [rule 3.610] is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents w…
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Castillo v. State, 929 So. 2d 1180 (Fla. 4th DCA 2006)…arging document is actual prejudice to the fairness of the trial.” Gray, 435 So. 2d at 818. So-called technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case. McMillan v. State, 832 So. 2d 946, 948 (Fla. 5th DCA 2002). Fundamental defects, however, can be raised for the first time on appeal. See Fulcher v. State, 766 So. 2d 243, 244 (Fla. 4th DCA 2000). A charging instrument is fundamentally defective if “it is so vague, inconsistent and…
Previewing 3 of 75 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ford v. State, 802 So. 2d 1121 (Fla. 2001)
- Deran Mosely v. State, 688 So. 2d 999 (Fla. 2d DCA 1997)
- Sanders v. State, 386 So. 2d 256 (Fla. 5th DCA 1980)
- K. K. v. State, 717 So. 2d 193 (Fla. 5th DCA 1998)
- Arthur v. State, 717 So. 2d 193 (Fla. 5th DCA 1998)
- Hayes v. State, 459 So. 2d 456 (Fla. 5th DCA 1984)
- State v. Wondle Wayne Wimberly, 459 So. 2d 456 (Fla. 5th DCA 1984)
- Ahlberg v. State, 541 So. 2d 775 (Fla. 3d DCA 1989)
- Perry v. Broward Cnty. Sheriff, 778 So. 2d 479 (Fla. 4th DCA 2001)