RAY E. BRADLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that an information charging perjury is invalid if not based on a valid indictment or sworn testimony, and the indictment must allege the defendant was under oath.
Appellant was indicted for perjury and an information was filed. The information was quashed and a new one filed, which the defendant moved to quash. …
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Appellant, who was defendant below, was indicted on a charge of perjury. Based upon the indictment, the state attorney filed an information in the Criminal Court of Record pursuant to § 32.18, Fla.Stat., F.S.A., accusing the defendant of having given false testimony before the grand jury, which constitutes an offense as provided in § 837.02, Fla.Stat., F.S.A. Subsequently, upon the motion of the state, this information was quashed and a new information filed. The second information was also based upon the indictment pursuant to § 32.18(4), Fla.Stat., F.S.A., and was indistinguishable from the first information except for one additional clause alleging that the defendant was under oath at the time he testified falsely. Defendant’s motion to quash the information was denied, and the cause proceeded to trial. Defendant here appeals the judgment and sentence imposed.
We are of the opinion that the recent case of State v. Hill, Fla.App.1968, - So.2d -, is controlling for the purposes of the instant appeal. The Hill case stands for the proposition that, to be valid, an information must be based either upon a valid indictment or upon sworn testimony.
Appellee argues that the indictment in this case is sufficient because it is not so vague, indistinct or indefinite as to mislead the accused or embarrass him in the preparation of a defense. See: § 906.25, Fla.Stat., F.S.A. But, it is clear that an indictment will not be upheld were it entirely omits an indispensable allegation. Walker v. State, 119 Fla. 240, 161 So. 278 (1935). It is essential in a charge of perjury to allege that the accused was under oath at the time of the commission of the offense. Gordon v. State, Fla.1958, 104 So.2d 524; Walker v. State, supra.
*141As the indictment in this case is incapable of supporting a valid information, and as there is no showing- that the information filed was based upon sworn testimony, appellant’s conviction must be reversed. Having so decided, we deem it unnecessary to discuss appellant’s other contentions.
Reversed.
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Citator
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State v. Theron Black, 385 So. 2d 1372 (Fla. 1980)…e statutory predecessors of Rule 3.140(o), however, have held that in spite of the rule’s dictates, an indictment still cannot be upheld where it omits an indispensable allegation. Walker v. State, 119 Fla. 240, 161 So. 278 (1935); Bradley v. State, 208 So. 2d 140 (Fla.3d DCA 1968). But cf. Brown v. State, 135 Fla. 30, 184 So. 518 (1938) (Court relied on predecessor of Rule 3.140(o) in approving trial court’s denial of defendant’s motion to quash indictment for failure to allege venue and other facts). . See…
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State v. Bacon, 385 So. 2d 1160 (Fla. 2d DCA 1980)…he stated ground of former jeopardy, came on for hearing he argued as an additional ground that the information was insufficient in that it had not been based upon either a valid indictment or “sworn testimony”, as required by law. Bradley v. State, 208 So. 2d 140 (Fla. 3d DCA 1968). The information filed in this case on September 19, 1979, contains the following certification: Personally appeared before me, JAMES T. RUSSELL, the undersigned State Attorney for the Sixth Judicial Circuit of Florida, in and f…
Authorities Cited
- Gordon v. State, 104 So. 2d 524 (Fla. 1958)
- Walker v. State, 119 Fla. 240 (Fla. 1935)
- Tucker v. City of Sebring, 119 Fla. 256 (Fla. 1935)