JAMES HEDGLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Hedglin appeals his nolo contendere conviction for lewd and lascivious molestation, attempting to challenge the trial court's denial of his motion to dismiss on grounds that the information was defective for lacking a proper oath. The court dismisses the appeal for lack of jurisdiction because the trial court's order denying the motion to dismiss was not dispositive—the state could cure any defect and proceed with trial.
A defendant may appeal a conviction based on a nolo contendere plea only if he expressly reserves the right to appeal a prior dispositive order. Here, the denial of the motion to dismiss was not dispositive because the state could cure the defect in the information and still bring the defendant to trial, so the appeal must be dismissed for lack of jurisdiction.
[1] A criminal conviction obtained via an unsworn information is reversible error.
[2] A defendant may preserve an objection to an unsworn information by filing a timely motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“A defendant may appeal a conviction based on a nolo contendere plea only if he expressly reserves the right to appeal a prior dispositive order of the trial court.”
Establishes the requirement for appellate jurisdiction in nolo contendere cases
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Join FLexlaw to unlock all legal intelligenceHedglin pleaded nolo contendere to two counts of lewd and lascivious molestation. Before entering his plea, he filed a motion to dismiss the informati…
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PETERSON, J.
James Hedglin appeals his conviction and sentence imposed following his plea of nolo contendere to two counts of lewd and lascivious molestation.1 Although he voluntarily entered his plea, Hedglin attempted to reserve his right to challenge the trial court’s denial of his motion to dismiss the information filed against him. Hedg-lin’s motion to dismiss alleged that the information against him was defective because it did not meet the requirements of Florida Rule of Criminal Procedure '3.140(g) where there was no evidence that the alleged child victim was administered an oath prior to giving her statement or that the person to whom the statement was given was a proper person to administer an oath. Because the trial court’s denial of Hedglin’s motion to dismiss was not dispositive, this court lacks jurisdiction and the instant appeal must be dismissed.
A defendant may appeal a conviction based on a nolo contendere plea only if he expressly reserves the right to appeal a prior dispositive order of the trial court. Brown v. State, 376 So. 2d 382 (Fla. 1979); §§ 924.051(4), 924.06(3), Fla. Stat. (2004); Fla. R.App. P. 9.140(b)(2)(A)®. In the instant case, the trial court expressed doubt that Hedglin’s motion to dismiss was dispositive and so advised Hedglin at the time he entered his plea. An issue is legally dispositive only if it is clear that regardless of whether the appellate court affirms or reverses the trial court’s decision, there will be no trial. E.g., Jones v. State, 806 So. 2d 590 (Fla. 5th DCA 2002).
The issue challenged on appeal (that the information filed against Hedglin was defective due to lack of a proper oath) is not dispositive of the underlying case because the State is free to cure the defect and file a proper information. The State could still bring Hedglin to trial even if this court were to reverse the convictions based upon the alleged defect in the information. See Alba v. State, 541 So. 2d 747 (Fla. 3d DCA 1989) (recognizing that defendant who was tried upon unsworn information was entitled to reversal of his convictions, but not to complete release from charges brought against him as defect of unsworn information was only one of form as distinguished from one of substance); see also Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960) (recognizing that although the Florida constitution requires an information be under oath, such verification is not a substantial part of the information and is merely to insure good faith in instituting proceed ings, and absence or omission of verification is only formal defect which may be waived, and does not render information void).
Accordingly, we dismiss Hedglin’s appeal for lack of jurisdiction. See, e.g., Teague v. State, 728 So. 2d 1203 (Fla. 5th DCA 1999).
DISMISSED.
SAWAYA, C.J., and MONACO, J., concur. . § 800.04(5)(b), Fla. Stat. (2002).
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Houston v. State, 925 So. 2d 404 (Fla. 5th DCA 2006)…der to protect her identity. This was not a false representation. AFFIRMED. PALMER and LAWSON, JJ., concur. . § 893.135(l)(b); § 843.02, Fla. Stat. . Fla. R.App. P. 9.140(b)(2)(A)(i); Brown v. State, 376 So. 2d 382 (Fla. 1979); Hedglin v. State, 892 So. 2d 1183 (Fla. 5th DCA 2005). . A "stop” is a shorthand way of referring to a seizure that is more limited in scope and duration than an arrest. State v. Jestice, 861 A. 2d at 1062.…
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Torrey Lenard Sloss v. State, 917 So. 2d 941 (Fla. 5th DCA 2005)…r the appellate court affirms or reverses the trial court’s ruling, there will be no trial. Jones (dismissing appeal because motion to suppress was not dis-positive; State had other evidence upon which to convict defendant); accord Hedglin v. State, 892 So. 2d 1183 (Fla. 5th DCA 2005). In Brown v. State, 376 So. 2d 382 (Fla.1979), the supreme court explained the requirement that the issue be disposi-tive: The practice of allowing an appeal after a plea of nolo contendere [or guilty] is grounded upon the belie…
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Blow v. State, 993 So. 2d 540 (Fla. 2d DCA 2007)…essly reserves the right to appeal a dispositive order of the trial court. Fla. R.App. P. 9.140(b)(2)(A)(i). A ruling is dispositive if it is clear that the State cannot proceed with prosecution on remand if the ruling is reversed. Hedglin v. State, 892 So. 2d 1183, 1184 (Fla. 5th DCA 2005); Griffin v. State, 753 So. 2d 676, 677 (Fla. 1st DCA 2000). Here, even if this court were to reverse the trial court’s denial of the motion to dismiss, the State could proceed with prosecuting Blow for child abuse under sec…
Authorities Cited
- Brown v. State, 376 So. 2d 382 (Fla. 1979)
- Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)
- Jones v. State, 806 So. 2d 590 (Fla. 5th DCA 2002)
- Chapelle L. Teague v. State, 728 So. 2d 1203 (Fla. 5th DCA 1999)
- Fortner v. State, 728 So. 2d 1203 (Fla. 1st DCA 1999)
- Alba v. State, 541 So. 2d 747 (Fla. 3d DCA 1989)