HOMER ROBERT LOWMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Homer Lowman's probation was revoked after he admitted violations, and he was sentenced to prison for false imprisonment. On appeal, Lowman challenged the trial court's jurisdiction to accept his nolo contendere plea to false imprisonment, arguing it was not a lesser included offense of the original assault with intent to commit rape charge. The appellate court affirmed the revocation, holding that although false imprisonment was not technically a lesser included offense, the trial court still had jurisdiction to accept the plea.
The trial court had jurisdiction to accept the nolo contendere plea to false imprisonment despite it not being a lesser included offense of the assault with intent to commit rape charge. Although it would be better practice for the trial court to require an amended accusatory pleading when the offense is not a lesser included offense, the failure to follow such practice does not deprive the court of jurisdiction.
[1] A trial court has jurisdiction to accept a plea of nolo contendere to an offense, even if that offense is not a lesser included offense of the crime originally charged, p…
[2] The failure of a trial court to require an amended accusatory pleading when accepting a plea to an offense not a lesser included offense of the original charge does not d…
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Join FLexlaw to unlock all legal intelligence“false imprisonment is not a lesser included offense of the charge of assault with intent to commit a felony, to-wit: rape”
The court acknowledged the jurisdictional defect—false imprisonment was not a legal lesser included offense of the original charge.
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Join FLexlaw to unlock all legal intelligenceIn February 1970, Lowman was charged by information with assault with intent to commit rape under Florida law. At trial, he withdrew his not guilty pl…
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OWEN, Chief Judge.
Appellant’s probation was revoked for admitted violations of the conditions of probation, whereupon he was sentenced to a term in the state prison for the substantive offense of which he theretofore had been adjudged guilty, to-wit: false imprisonment. The appeal is from the order of revocation.
By information, appellant was charged with assault with intent to commit rape contrary to Section 784.06, F.S. To that charge he entered a plea of not guilty. When the case was called for trial, appellant requested and received permission of the court to withdraw his plea of not guilty to the charge and in lieu thereof and without amendment to the information he was permitted to enter a plea of nolo con-tendere to the “lesser included offense of false imprisonment”. The court adjudged appellant guilty of the offense of false imprisonment and placed him on probation. This was in February, 1970. In November, 1973, appellant’s probation was revoked, and thereafter he was sentenced on the charge of false imprisonment to a term of two years in prison with credit for certain time served.
Appellant’s sole point on this appeal is that the court did not have jurisdiction to accept the plea of nolo contendere because false imprisonment is not a lesser included offense of the charge of assault with intent to commit rape.
We agree that false imprisonment is not a lesser included offense of the charge of assault with intent to commit a felony, to-wit: rape. Nor in this particular case were the essential elements of the offense of false imprisonment alleged in the information in such a manner that it could be said that false imprisonment was included in the offense charged by virtue of the wording of the accusatory pleading. Nonetheless, we conclude on the rationale of the Meyers case, infra, that the trial court did have jurisdiction to accept a plea of nolo contendere to the offense for which appellant now stands convicted, to-wit: false imprisonment.
In the case of State v. Meyers, 1964, 256 Iowa 801, 129 N.W. 2d 88, the Supreme Court of Iowa considered a somewhat analogous situation. There, appellant Meyers was charged by information with the crime of incest to which he entered a plea 'of not guilty. Subsequently, Meyers appeared in court with counsel and entered his plea of guilty to the crime of assault with intent to commit rape, as an included offense, which plea was accepted by the court and the charge of incest against the defendant was dismissed. On direct appeal, Meyers contended that the crime of assault with intent to commit rape was not an included offense of the crime of incest, and thus the judgment was void. The Supreme Court of Iowa, agreeing that assault with intent to commit rape was not an included offense in the crime of incest with which Meyers had been charged, nonetheless found that the trial court had jurisdiction and that the court’s judgment and sentence was not void.
While it would be the better practice for the trial court to ascertain that the offense to which the plea is to be entered is one for which the accused could be convicted under the offense charged in the information or indictment, and if it is not, to require that an amended accusatory pleading be first filed, nevertheless, the court’s failure to follow such practice did not deprive it of jurisdiction in the case.
The order of revocation of probation is affirmed.
WALDEN, J., concurs.
CROSS, J., dissents without opinion.
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Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)…lant knew that it was a police officer whom he struck. Even though there is no possibility that the appellant could have been misled by the defect in the information, do the precedents cited above require reversal? We think not. In Lowman v. State, 303 So. 2d 667 (Fla. 4th DCA 1974), the defendant was charged with assault with intent to commit rape and was later permitted to enter a plea of nolo contendere to the “lesser included offense of false imprisonment.” He was put on probation but he violated his pro…
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Causey v. State, 307 So. 2d 197 (Fla. 2d DCA 1975)…h he was not charged. Perkins v. Mayo, Fla.1957, 92 So. 2d 641. While no objection was made to the giving of the charge, the error is fundamental. Johnson v. State, Fla.App.2d, 1969, 226 So. 2d 884. The cases of Lowman v. State, Fla.App. 4th, 1974, 303 So. 2d 667, and Burns v. State, Fla.App.2d, 1974, 300 So. 2d 317, cited by the State, involved pleas of nolo con-tendere and guilty and are inapplicable here. In essence, those pleas were equivalent to a mutually agreeable amendment of the accusatory writ. Ap…
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Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978)…” not supported by the allegations contained in the information, it has been held that the court has jurisdiction to convict on the basis of such pleas and the appellants are estopped from assigning as error that which they induced. Lowman v. State, 303 So. 2d 667 (Fla. 4th DCA 1974); Andrews v. State, 343 So. 2d 844 (Fla. 1st DCA 1976). As has been noted, the appellant here made no objection to the court’s giving the jury an instruction on aggravated assault. Appellant urged the jury to give consideration t…
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