LOUIS FEKANY
v.
STATE
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The Florida Supreme Court reversed a felony conviction for desertion and withholding support, holding that the trial court erred in denying a motion to quash when the prosecution amended the information to strike the wife without court leave, re-swearing, re-filing, or giving the defendant an opportunity to plead to the amended charge.
The motion to quash was well taken and the trial court erred in denying it. Florida law, requiring that the same rules of pleading and practice apply to informations as to indictments, does not allow material substantive amendments to an information without court leave, re-swearing, re-filing, and affording the defendant notice and an opportunity to be heard.
“the rather liberal doctrine as to allowance of amendments to informations obtaining in many other States, largely by reason of statutory provisions, is not recognized in this State, where by statute (Sections 8257 and 8366 C. G. L.) the rules of pleading and practice that obtain as to indictments obtain also as to informations”
Establishes that Florida does not follow the liberal amendment doctrine of other states and applies strict indictment rules to informations
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Join FLexlaw to unlock all legal intelligenceFekany was arraigned on an information charging desertion and withholding support from his wife and children, a felony, and pleaded not guilty. At tri…
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In this case the defendant was arraigned on an information charging desertion and withholding support from his wife and children, a felony by statute, to which information he pleaded not guilty. When the case came on for trial it appeared that the Solicitor had amended the information by striking out all reference to the wife, without obtaining leave of the court so to do, and without re-swearing to the information as amended, and without a re-filing of the amended information. Nor was the defendant arraigned and given an opportunity to plead to the amended information, which amendment was a material one, not of form merely, but of substance. A motion to quash was promptly made by the counsel for the defendant when the case was called for trial and the motion overruled, to which defendant excepted.
As was called attention to in the case of Suarez v. State, 95 Fla. 42, 115 So. 519, the rather liberal doctrine as to allowance of amendments to informations obtaining in many other States, largely by reason of statutory provisions, is not recognized in this State, where by statute (Sections 8257 and 8366 C. G. L.) the rules of pleading and practice that obtain as to indictments obtain also as to informations. See in this connection 31 C. J. 823-825. Even where amendments to information are allowable, it has been held that it is within the discretion of the trial court whether it will permit an information to be amended, and that on *600motion to amend the defendant is entitled to notice and an opportunity to be heard, and that an amendment made without this is erroneous. 31 C. J. 827-828.
Regardless of the reason for the error, the amendment made was as to a matter of substance, such as could not have been made in an indictment by a State Attorney, and the result was that the information upon which the defendant was tried was not the information upon which he had been'arraigned and to which he had pleaded. If the defendant had not raised the question by motion to quash before going to trial, probably the objection would have been waived, but having raised the question promptly and seasonably we are inclined to the view that the motion to quash was well taken and that the court err.ed in denying the same.
Reversed and remanded.
Davis, C. J., and Whitfield, Terrell, Brown and Buford, J'.. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alvaro Alvarez v. State, 157 Fla. 254 (Fla. 1946)…d that the defendant should be rearraigned, should replead and the jury should be reselected and resworn upon the new issues joined. Suarez v. State, 95 Fla. 42, 115 So. 519; Tootle v. State, 100 Fla. 1248, 130 So. 912; Fekany v State, 111 Fla. 598, 149 So. 590, State ex rel. Wentworth v. Coleman, 121 Fla. 13, 163 So. 315. It is the contention of the State that amendments such as is here involved are lawfully authorized under the provisions of sub-paragraph 5 of Sec. 906.08 Fla. Statutes, 1941 (same FSA)…
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Lawson v. State, 251 So. 2d 683 (Fla. 3d DCA 1971)…ts were being subjected in the trial court. The amendment being one of substance, the information should have been re-filed with a new arraignment for the defendants, etc. See: Suarez v. State, 95 Fla. 42, 115 So. 519; Fekany v. State, 111 Fla. 598, 149 So. 590; State ex rel. Wentworth v. Coleman, 121 Fla. 13, 163 So. 316; Alvarez v. State, 157 Fla. 254, 25 So. 2d 661; compare Johnson v. State, Fla.App.1966, 190 So. 2d 811. Therefore, we find that the trial judge committed error in permitting the amendmen…
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Lambert v. State, 111 So. 2d 68 (Fla. 1st DCA 1959)…signed and sworn to by the authorized prosecuting official and then refiled, whereupon the defendant must again be arraigned, a jury selected, and the trial proceed anew. See also: Sipos v. State, Fla., 90 So. 2d 113; Fekany v. State, 111 Fla. 598, 149 So. 590. If, however, the true name of the alleged owner simply has not been accurately stated, the error is curable by amendment under the statute. Alvarez v. State, supra. The suffix “Jr.” or “Sr.” is ordinarily considered descriptio personae and not par…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emelio Suarez v. State, 95 Fla. 42 (Fla. 1928)
- Vazquez v. Ailyn M. Rebaza Smith (Fla. 3d DCA 2021)