WILLIAM SCHOENHOLTZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant waives defects in an information by failing to obtain a ruling on a motion to quash before pleading nolo contendere.
The defendant was adjudicated guilty of issuing a worthless check after pleading nolo contendere. He appealed, claiming the information was insufficie…
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Defendant below, William Schoenholtz, appeals from his adjudication of guilt on the charge of issuing a worthless check over $50.00 and obtaining services, goods, wares or other things of value.
The defendant moved to quash the information in the trial court and the court reserved ruling upon the motion. The defendant later withdrew his guilty plea and tendered a plea of nolo contendere, which plea was accepted by the court. He was adjudicated guilty and sentenced to the state penitentiary for a term of one year. He has appealed from his judgment of conviction and sentence.
The sole claim which the defendant submits as reversible error by this appeal involves the sufficiency of the accusatory writ. This is generally permissible under a plea of nolo contendere. See Peel v. State, Fla.App.1963, 150 So.2d 281.
Notwithstanding this, the record shows that in the instant case the defendant failed to obtain a ruling by the trial court on his motion to quash the information and, therefore, waived any alleged defects in the information. Generally, de*442fects in an information which are not ruled upon by the trial court cannot be raised for the first time on appeal. See Fla.Stat. § 909.06, F.S.A. and Nelson v. State, Fla.1956, 85 So.2d 832.
Assuming arguendo, that defendant’s point concerning the alleged deficiency of accusatory writ might constitute fundamental or jurisdictional error, we, nevertheless, find that this point is controlled by the decision of Benitez v. State, Fla.App. 1965, 172 So.2d 520. See also Gurr v. State, 150 Fla. 65, 7 So.2d 590 (1942); Butler v. Perry, 67 Fla. 405, 66 So. 150 (1914); Ferrell v. State, 45 Fla. 26, 34 So. 220 (1903); and Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890).
The judgment and sentence herein appealed are, therefore, affirmed.
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Caves v. State, 302 So. 2d 171 (Fla. 2d DCA 1974)…Sec. 366 et seq. This is in keeping with the weight of authority that a plea in abatement must be made before pleading in bar, 21 Am.Jur.2d, Criminal Law, § 470; Shifrin v. State, Fla.App., 1968, 210 So. 2d 18; Schoenholtz v. State, Fla.App., 1969, 220 So. 2d 441; Robinson v. State, Fla.App., 1970, 239 So. 2d 282. In West v. State, 149 Fla. 436, 6 So. 2d 7, defendant raised in a motion for new trial after conviction, the point that the information wholly failed to charge a crime, and the Supreme Court held…
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Norris v. State, 249 So. 2d 746 (Fla. 4th DCA 1971)…y, the necessity of a presentence investigative report, inquiry into mitigating circumstances and the denial of a motion for a new trial. F.S. section 909.06, F.S.A.; Shifrin v. State, Fla.App.1968, 210 So. 2d 18; Schoenholtz v. State, Fla.App.1969, 220 So. 2d 441; Crossley v. State, Fla.App.1967, 200 So. 2d 640; Hall v. State, Fla.App.1965, 179 So. 2d 372; Sinclair v. State, Fla.1950, 46 So. 2d 453; [*747] Peters v. State, Fla.1954, 76 So. 2d 147; Victer v. State, Fla.1965, 174 So. 2d 544; Melkun v. State, S…
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Stillings v. State, 273 So. 2d 425 (Fla. 1st DCA 1973)…PER CURIAM. The briefs and the record on appeal having been read and given full consideration, and the appellant having failed to demonstrate reversible error, the judgment of the lower court is affirmed. See Schoenholtz v. State, 220 So. 2d 441 (Fla.App.1969). CARROLL, DONALD K., Acting C. J., and RAWLS and JOHNSON, JJ., concur.…
Authorities Cited
- Butler v. J. W. Perry as Sheriff, 67 Fla. 405 (Fla. 1914)
- Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)
- Baeumel v. State, 26 Fla. 71 (Fla. 1890)
- Nelson v. State, 85 So. 2d 832 (Fla. 1956)
- Ferrell v. State, 45 Fla. 26 (Fla. 1903)
- Gurr v. State, 150 Fla. 65 (Fla. 1942)
- Kelly v. Patek, 172 So. 2d 520 (Fla. 3d DCA 1965)
- Benitez v. State, 172 So. 2d 520 (Fla. 2d DCA 1965)