JOHN BOLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Boley was convicted of felony marijuana delivery and possession in a Florida trial court. The appellate court reversed because the information failed to allege facts necessary to make the charges felonies rather than misdemeanors, depriving the trial court of jurisdiction.
The trial court lacked jurisdiction because the information, failing to allege facts necessary to constitute felonies, charged only misdemeanors which must be tried in the Magistrates Court. The conviction as felonies was void for lack of jurisdiction.
[1] A criminal information charging delivery and possession of marijuana must specify the quantity of marijuana and the consideration for the delivery to elevate the offense…
[2] A court of record in Brevard County, Florida, has jurisdiction over criminal cases not capital, including felonies and misdemeanors.
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Join FLexlaw to unlock all legal intelligence“the charges, as a matter of law, were only misdemeanors and not felonies”
Establishes that failure to allege quantity, consideration, or prior conviction means marijuana charges cannot be elevated to felonies
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Join FLexlaw to unlock all legal intelligenceBoley was charged by a two-count information with delivery of marijuana and possession of marijuana. The information did not specify the quantity of m…
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Defendant was convicted of felonies charged by a two-count information with delivery of marijuana and possession of marijuana. The information did not specify the quantity of marijuana involved and neither did it state the consideration for the delivery, nor that defendant had been previously convicted of violating the Drug Abuse Law. Thus, the charges, as a matter of law, were only misdemeanors and not felonies. Pope v. State, Fla.App.1972, 268 So.2d 173.
We digress to point out that the defendant was convicted in the Court of Record in and for Brevard County, Florida. Said court’s jurisdiction is as follows :
“Section 2. The court of record in and for Brevard county shall have jurisdiction of all criminal cases not capital, both felonies and misdemeanors, including driving while intoxicated and all other traffic offenses which shall arise in Brevard county.” Ch. 65-672(2), Laws of Florida.
We further note that in 1967 the name of the Brevard county small claims court was changed to the Magistrates Court of Bre-vard County and its jurisdiction changed so that it had exclusive jurisdiction of all misdemeanors. Ch. 67-1018, Laws of Florida (1967). In 1969 its jurisdiction was further changed:
“(b) In addition to the civil jurisdiction now being exercised by such court, such court shall have general jurisdiction of all misdemeanors, including traffic offenses which shall be committed in Brevard County, provided however, that any court exercising felony jurisdiction in Brevard County may exercise concurrent misdemeanor jurisdiction in those cases where a person accused of a felony is also in the same information accused of a misdemeanor allegedly committed during or contemporaneously with the act giving rise to the felony accusation. The criminal process of such court shall run throughout the State. Such court shall be a court of record and shall have all of the powers inherent to courts of record generally, and the Clerk of such court shall keep a record of all acts and judicial proceedings done in such court.” Ch. 69-531, Section 1(b), Laws of Florida (1969) (Emphasis added.)
From the above it appears that the trial court in this instance had misdemeanor jurisdiction only when the misdemeanor charge was included in an information charging a felony.
The information in this case wholly failed to charge any felony; thus, it is clear that the charges being only misdemeanors could not be tried in the court of record and, thereby, the conviction therein as felonies was void for lack of jurisdiction, misdemeanor jurisdiction being lodged in the Magistrates Court of Brevard County.
Inasmuch as the conviction must be reversed and the cause remanded for a new trial, we further note two additional errors: a) the court erred, as admitted by the state on appeal, in allowing the state to cross-examine the defendant, over defense objection, concerning the defendant’s military service where the testimony was irrelevant and defendant had not put his good character in issue; b) it was error to deny in part the defendant’s motion for statement of particulars.
The judgment is reversed and the cause remanded with instructions to quash the information and to allow the state to *111amend or re-file the information in the appropriate court, depending on what it wishes to allege. Pope v. State, Fla.App.1972, 268 So.2d 173.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
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Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984)…the jurisdiction of the circuit court. An information which charges delivery of cannabis without specifying the amount of the cannabis delivered or without alleging that the delivery was for consideration charges only a misdemeanor. Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So. 2d 668 (Fla.1973); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So. 2d 99 (Fla. 1973). On the other hand, the word “sale” by definition means a delivery with consideration and…
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Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977)…ant of the Drug Abuse Law or that the amount of marijuana involved exceeded five grams. In the absence of such allegata, the offenses charged were only misdemeanors as a matter of law and the Circuit Court had no felony jurisdiction. Boley v. State, 273 So. 2d 109 (Fla.4th DCA 1973). Therefore, the Circuit Court’s Order placing Appellant on probation was void. Pope v. State, 268 So. 2d 173 (Fla.2d DCA 1972); Boley v. State, supra. All proceedings flowing from this void Order, specifically the Order revoking…
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Phillips v. State, 438 So. 2d 886 (Fla. 1st DCA 1983)…. denied, 283 So. 2d 99 (Fla.1973); Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979); Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977), cert. denied, 353 So. 2d 679 (Fla.1977); Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973), cert. denied, 287 So. 2d 668 (Fla.1973); but cf. Peek v. Wainwright, 393 So. 2d 1175 (Fla. 3d DCA 1981). We do not reach the other points urged on this appeal. The judgment and sentence are VACATED. We take note from the state’…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)