THE STATE OF FLORIDA, APPELLANT,
v.
METTIE LEE FRAZIER, APPELLEE
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The State appealed orders vacating two robbery convictions of Mettie Lee Frazier based on alleged defects in the informations. The Florida District Court of Appeal reversed, holding that objections to informations not being properly sworn must be raised before a defendant pleads to the merits.
The trial court erred in granting the Rule 1.850 motions because Rule 1.140(g) provides that no objection to an information on the ground that it was not signed or verified shall be entertained after the defendant pleads to the merits.
[1] An objection to an information based on it not being signed or verified is waived if not raised before the defendant pleads to the merits.
[2] A defendant's failure to object to an information's lack of signature or verification before pleading to the merits precludes post-conviction relief on that ground.
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Join FLexlaw to unlock all legal intelligence“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.”
This rule establishes the procedural bar that prevented Frazier from challenging the information after his pleas, forming the basis for the reversal.
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Join FLexlaw to unlock all legal intelligenceFrazier was convicted in two separate cases on January 16, 1968: one for robbery after a bench trial, receiving 30 years, and one for assault with int…
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The appeals in the above numbered cases were filed by the state from orders of the criminal court of record for Dade County setting aside two prior convictions and sentences of the appellee Mettie Lee Frazier, on his motions under Rule 1.850 CrPR, 33 F.S.A. for relief therefrom.
In one of the cases (appeal No. 70-151) the appellee pleaded not guilty, waived a jury and was tried by the court, on an information charging him with the crime of robbery. On January 16, 1968, he was found and adjudged guilty, and sentenced to confinement in the state penitentiary for a period of 30 years. Mettie Lee Frazier appealed that judgment to this court, which affirmed the judgment on December 10, 1968 (216 So.2d 264).
In the other case (appeal No. 70-152) the appellee was informed against for a separate alleged robbery, to which he initially, pleaded not guilty, later withdrew that plea and pleaded guilty to the lesser offense of assault with intent to commit robbery, of which offense he was adjudged guilty and sentenced to be confined in the state penitentiary for a period of 20 years, less certain jail time served. That judgment and sentence likewise were entered on January 16, 1968.
On December 22, 1969, there was filed on behalf of the appellee, through the public defender’s office, motions under Rule 1.850 CrPR, for relief from the judgments and sentences, consequent upon which the trial court vacated the judgments and sentences in each case on December 30, 1969. The ground upon which such relief was sought, and was granted by the trial court, was that the informations which were signed by the state attorney and bore jurats signed by a deputy court clerk, had not in fact been sworn to before the clerk by the state attorney.
We hold the trial court was in error in entering the orders which are the subjects of these appeals, for the reason that Rule 1.140(g) CrPR which requires that an information be signed by the legally authorized prosecuting attorney under oath, provides: “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.” See Champlin v. Cochran, Fla.1960, 125 So.2d 565; Champlin v. State, Fla.App.1960, 122 So.2d 412.
Accordingly, the orders challenged in these above styled and numbered appeals are reversed, and the judgments and sentences in these cases which were vacated by such orders are hereby reinstated and restored to full force and effect.
It is so ordered.
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City OF W. Palm Beach v. Widell Assocs., Inc., 266 So. 2d 176 (Fla. 4th DCA 1972)…he trial judge where no written showing of good cause is made within five days prior to the hearing. Leithauser v. Harrison, Fla.App.1968, 206 So. 2d 222, cert. denied, Fla., 212 So. 2d 868; Associates Discount Corporation v. Gonzalez, Fla.App.1970, 239 So. 2d 630. My brothers have now recognized an exception to the literal interpretation of the rule, wherein if a judge enters an order of continuance leaving the resetting of the case open to the parties and the judge, then the one year rule for failure to pr…
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Lobas v. State, 285 So. 2d 428 (Fla. 3d DCA 1973)…PER CURIAM. Affirmed on the authority of State v. Frazier, Fla.App. 1970, 239 So. 2d 630.…
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Young v. State, 242 So. 2d 744 (Fla. 4th DCA 1971)…elief, the defendant has prosecuted his appeal. If it were true that the information filed had not been properly sworn to, the defendant could not now complain. See Bretti v. State, Fla.App.1970, 239 So. 2d 527, and State v. Frazier, Fla.App. 1970, 239 So. 2d 630. However, the certified photostatic copy of the information filed with this court reveals that the same was properly executed under oath. All inmates in state prisons must realize that their discontent does not justify resort to perjury in an effor…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)
- Champlin v. Cochran, 125 So. 2d 565 (Fla. 1960)
- Mettie Lee Frazier v. State, 216 So. 2d 264 (Fla. 3d DCA 1968)