DOMINICK A. BRETTI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the failure to personally swear to an information is a formal defect that is waived if not objected to before pleading to the merits.
Dominick A. Bretti appealed an order denying his motion to vacate his judgment and sentence, arguing the original information was not personally sworn…
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Dominick A. Bretti appeals from an order denying his Rule 1.850, 33 F.S.A., motion to vacate his judgment and sentence.
*528For a statement of the reasons for the dismissal of his original appeal from the conviction see Bretti v. Wainwright, Fla.1969, 225 So.2d 516.
We will not consider an appeal from the denial of a Rule 1.850 motion as a substitute for the original appeal which Bretti abandoned. Mitchell v. State, Fla.App.1964, 167 So.2d 27.
Bretti argues that the trial court erred in denying his motion under Rule 1.850 because the original information was not personally sworn to as required by the Declaration of Rights, § 10 of the Florida Constitution of 1885, as amended, and § 906.04 of the Florida Statutes, F. S.A., and that this was a latent defect which was raised by him as soon as it was discovered.
Rule 1.140(g), CrPR, provides:
“An information shall be signed by the legally authorized prosecuting attorney under oath stating his good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.” (Emphasis added)
It has been held that “ * * * the verification is not a substantial part of the information, and is merely to insure good faith in instituting the proceedings. Absence or omission * * * is only a formal defect and does not render the information void, and the defect may be waived.” Champlin v. State, Fla.App.1960, 122 So.2d 412. See also Gerlaugh v. Florida Parole Commission, Fla.1962, 139 So.2d 888; Champlin v. Cochran, Fla.1960, 125 So.2d 565; and Rule 1.140(o), CrPR.
The order herein appealed is
Affirmed.
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Tafero v. State, 242 So. 2d 470 (Fla. 3d DCA 1971)…26 So. 2d 441. Appellant’s next point argues that the information was defective in that it was improperly sworn to. The trial court cited Champlin v. State, Fla.App.1960, 122 So. 2d 412 in denying the motion. See also Bretti v. State, Fla.App.1970, 239 So. 2d 527. Appellant also urges that at his trial the court did not properly instruct the jury upon a lesser included offense. Appellant was represented at trial and upon appeal of the judgment by privately employed counsel. He may not now use a motion pursu…
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Alderman v. State, 281 So. 2d 231 (Fla. 1st DCA 1973)…) and statutory law, F.S., Sec. 27.181(3), F.S.A. The law is well settled on this point that failure to make timely objection constitutes a waiver of this defect. Gerlaugh v. Florida Parole Commission, 139 So. 2d 888 (Fla.1962), and Bretti v. State, 239 So. 2d 527 (3 Fla.App.1970). Also, see “Cr.PR” 3.140(g), 33 F.S.A., which reads in part “ . . . No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.”…
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Zide v. State, 253 So. 2d 917 (Fla. 3d DCA 1971)…ot allege any facts to show prejudice. Lawson v. State, Fla.App.1968, 215 So. 2d 790. His next contention appears to be that he was convicted on an information which was not verified. This argument was held unsound in Bretti v. State, Fla.App.1970, 239 So. 2d 527. See also Rule 1.-140(g), CrPR, 33 F.S.A. The trial judge heard argument on the issue that his trial counsel was incompetent and ruled that his trial attorney conducted the trial in a competent manner. No error has been demonstrated in this ruling.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)
- Bretti v. Louie L. Wainwright, 225 So. 2d 516 (Fla. 1969)
- Champlin v. Cochran, 125 So. 2d 565 (Fla. 1960)
- Gerlaugh v. Fla. Parole Comm'n, 139 So. 2d 888 (Fla. 1962)
- Napoleon C. Mitchell v. State, 167 So. 2d 27 (Fla. 2d DCA 1964)