MILTON L. ALDERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that failure to make a timely objection to the information's signature constitutes a waiver of the defect.
Appellant was convicted of breaking and entering with intent to commit grand larceny and grand larceny. Appellant challenged the conviction, arguing t…
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Appellant was convicted on June 15, 1971, of committing three crimes; namely, two counts of breaking and entering with intent to commit grand larceny and grand larceny. Charlie Sitterson, codefendant, was likewise convicted at the same time and his conviction has been affirmed by this Court. Sitterson v. State, 270 So.2d 25 (1 Fla.App.1972).
Appellant through counsel and in propria persona has posed numerous points on appeal, the first of which attacks jurisdiction because of the fact that the information was signed by an assistant state attorney instead of the state attorney. Constitution of the State of Florida, F.S.A., Article 1, Section 15(a) 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.”
Voluminous testimony was adduced by the State in proof of appellant’s guilt and the evidence amply supported the verdict of the jury. The other points raised are without sufficient merit, and we do not think that a detailed enumeration and discussion of them would serve any useful purpose. The questions of law were properly supported by adequate authority.
The judgment of conviction and the denial of motion for new trial are hereby affirmed.
WIGGINTON, J., concurs.
RAWLS, Acting C. J., dissents.
(dissenting).
Three defendants, appellant Alderman, Charlie Sitterson, and Charles Simmons were charged with the crimes of breaking and entering and grand larceny. Trial was commenced in a consolidated case, and during the course of same, a mistrial was declared as to Simmons. Alderman and Sitterson were convicted. In a prior appeal, the conviction of Sitterson was affirmed by this Court reported at 270 So.2d 25 (1 Fla.App. 1972). Basically, the same procedural errors alleged in the instant case were posed in Sitterson. Hence, my brethren are of the view that the decision of this Court in Sitterson, supra, is controlling as to his codefendant, appellant Alderman.
Simmons was tried in a separate trial. This Court in an opinion authored by the writer reversed Simmons and directed that he be granted a new trial. Simmons v. Wainwright, 271 So.2d 464 (1 Fla.App.1973.) A number of the identical errors delineated in Simmons, supra, appear in the instant cause. I would reverse on authority of Simmons v. Wainwright, supra, and remand for a new trial.
RAWLS, Acting Chief Judge
(dissenting).
Three defendants, appellant Alderman, Charlie Sitterson, and Charles Simmons were charged with the crimes of breaking and entering and grand larceny. Trial was commenced in a consolidated case, and during the course of same, a mistrial was declared as to Simmons. Alderman and Sitterson were convicted. In a prior appeal, the conviction of Sitterson was affirmed by this Court reported at 270 So. 2d 25 (1 Fla.App. 1972). Basically, the same procedural errors alleged in the instant case were posed in Sitterson. Hence, my brethren are of the view that the decision of this Court in Sitterson, supra, is controlling as to his codefendant, appellant Alderman.
Simmons was tried in a separate trial. This Court in an opinion authored by the writer reversed Simmons and directed that he be granted a new trial. Simmons v. Wainwright, 271 So. 2d 464 (1 Fla.App.1973.) A number of the identical errors delineated in Simmons, supra, appear in the instant cause. I would reverse on authority of Simmons v. Wainwright, supra, and remand for a new trial.
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Authorities Cited
- Simmons v. Louie L. Wainwright, 271 So. 2d 464 (Fla. 1st DCA 1973)
- Gerlaugh v. Fla. Parole Comm'n, 139 So. 2d 888 (Fla. 1962)
- Bretti v. State, 239 So. 2d 527 (Fla. 3d DCA 1970)
- Hutchison v. Int'l Paper Co., 270 So. 2d 25 (Fla. 1st DCA 1972)