FRANCIS KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that Section 870.01(2), Florida Statutes (1973), is constitutional but the information was insufficient to charge the offense of riot.
Appellant was charged with riot and malicious damage to property. He moved to dismiss the riot charge, claiming the statute was unconstitutional. The …
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OVERTON, Justice.
This case is before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973). The appellant, Francis Kelly, was charged in a two-count information as follows:
“COUNT I FRANCIS KELLY, did then and there riot, or incite a riot, or encourage a riot.
“COUNT II FRANCIS KELLY, did then and there, willfully, maliciously and intentionally injure or damage real or personal property, to-wit: An International backhoe, the property of RUPERT BROWN, said damage being in excess of $200.00.” 1
The appellant moved to dismiss Count 1 on the grounds that:
“. . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines. . .
The trial court denied the motion to dismiss. We have jurisdiction.2
The appellant was tried by a jury, which returned its verdict of guilty to both Counts 1 and 2 of the information. The appellant was sentenced to five years on each count, the sentences to run concurrently.
We hold Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley, 317 So. 2d 750 (Fla.1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in this cause is insufficient to properly charge the offense of riot. The conviction and sentence under Count 1 of the information are hereby vacated, without prejudice to the State to file an amended information.
The conviction and sentence under Count 2 of the information are valid, no error having been asserted.
This cause is remanded for proceedings not inconsistent herewith.
It is so ordered.
ADKINS, C. J., and ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ.
. Section 822.18, Florida Statutes (1973).
. Article V, Section 3(b)(1), Florida Constitution.
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Corn v. State, 332 So. 2d 4 (Fla. 1976)…ose of the case, all the facts which are well-pleaded and only those.” Allen v. State, 326 So. 2d 419 (Fla. 1975). A conviction predicated on a plea to an information which fails to charge a crime is a nullity. Allen v. State, supra; Kelly v. State, 323 So. 2d 565 (Fla. 1975); Baker v. State, 323 So. 2d 556 (Fla. 1975); Zimmerman v. State, 320 So. 2d 41 (Fla.App.2d Dist. 1975). Where an accusatory pleading “wholly fails to allege any offense against the defendant, or to allege the essential elements of the st…
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Blannie Mae Spears v. State, 337 So. 2d 977 (Fla. 1976)…lty, the trial court rejected a constitutional challenge to the validity of a state statute. Accordingly, we have jurisdiction. Wooten v. State, 332 So. 2d 15 (Fla., 1976); Allen v. State, 326 So. 2d 419 (Fla. 1975) (reh. den. 1976); Kelly v. State, 323 So. 2d 565 (Fla. 1975); Baker v. State, 323 So. 2d 556 (Fla. 1975); Singletary v. State, 322 So. 2d 551 (Fla. 1975); Hurley v. State, 322 So. 2d 506 (Fla. 1975). This is not the first time Section 847.05 has been challenged in this Court as an unconstitutiona…
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Crossley v. State, 334 So. 2d 17 (Fla. 1976)…ble as provided in s. 775.082, s. 775.083, or s. 775.084. After his motion to dismiss was denied, appellant pleaded nolo contendere, expressly preserving for appeal the question whether the motion to dismiss was properly denied. See Kelly v. State, 323 So. 2d 565 (Fla.1975); Baker v. State, 323 So. 2d 556 (Fla.1975); State v. Ashby, 245 So. 2d 225 (Fla.1971). It is conceded that appellant was in possession of a firearm, having been previously convicted of a felony (aggravated assault), as alleged in the info…
Authorities Cited
- State v. Beasley, 317 So. 2d 750 (Fla. 1975)