THOMAS DUGGER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Thomas Dugger appealed his conviction for conspiracy to sell a controlled substance and drug sale, challenging the authority of the assigned State Attorney to prosecute the case and the qualifications of the assistant who signed the information. The Florida appellate court affirmed, holding that Supreme Court extensions of the assignment were valid and the assistant was properly sworn to prosecute in the assigned circuit.
The court held that no reversible error occurred. The Supreme Court extensions of the Executive Order assignment were valid, and the gap between extension periods did not vitiate the prosecution or proceedings. The assistant state attorney was properly sworn as an assistant for the Sixteenth Judicial Circuit and was legally qualified to sign the information.
[1] A prosecution is not vitiated by a brief, unintentional gap between the expiration of one extension period for an assigned prosecutor and the commencement of a subsequent…
[2] Challenges to the authority of a prosecutor to conduct a prosecution must be raised by a writ of quo warranto.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The fact that there was a gap of approximately one week between the end of one extension period and the time of the further extension by the Supreme Court did not operate to vitiate the prosecution, or the proceedings thereon which took place in the interval.”
Establishes that minor gaps in assignment extensions do not invalidate prosecution or proceedings during the gap period.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDugger was convicted of conspiracy to sell a controlled substance and sale and delivery of a controlled substance. The State Attorney of the Eleventh …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appealing from conviction of conspiracy to sell a controlled substance and sale and delivery of a controlled substance, the defendant-appellant presents two points. In one, appellant contends the court committed error by permitting an assigned state attorney through his assistant to prosecute the defendant when the period of assignment had expired. Secondly, appellant contends the court erred in denying his motion to dismiss the information as amended for insufficiency and for the asserted ground that the assistant state attorney who signed the information was not legally qualified to do so. Those contentions have been considered in the light of the record, briefs and argument, and we hold that no reversible error has been shown.
Regarding the first contention, there were extensions, made by the Supreme Court, of the Executive Order by which the State Attorney for the Eleventh Judicial Circuit had been assigned to prosecute this and other interrelated cases in the Sixteenth Judicial Circuit. The fact that there was a gap of approximately one week between the end of one extension period and the time of the further extension by the Supreme Court did not operate to vitiate the prosecution, or the proceedings thereon which took place in the interval. In re Executive Assignment of State Attorney, 298 So. 2d 382 (Fla.1974); Austin v. State ex rel. Christian, 310 So. 2d 289 (Fla.1975). There was no timely challenge of the authority or power of the state attorney then conducting the prosecution, to so proceed. Such challenge, if made, would need to have been presented by quo warranto. Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Carey v. State, 349 So. 2d 820 (Fla.3d DCA 1977, opinion filed September 13, 1977).
As to the appellant’s second point, it was shown that the assistant state attorney, who was of the Eleventh Judicial Circuit, who signed the information had been sworn as an assistant state attorney for the Sixteenth Judicial Circuit in the matters, of which this was one, for the prosecution of which the State Attorney of the Eleventh Judicial Circuit was assigned and directed to conduct such prosecution, by Executive Order. Denial of defendant’s motion to dismiss the information as amended was not error. Affirmed.
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Citator
Cited By
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State v. Rivero, 400 So. 2d 34 (Fla. 3d DCA 1981)…1973). Florida courts have consistently held that the signing or verification of an information is a [*36] procedural matter. See, e. g., State v. Polo, 242 So. 2d 457 (Fla.1970); Champlin v. Cochran, 125 So. 2d 565, 566 (Fla.1960); Dugger v. State, 351 So. 2d 740 (Fla.3d DCA 1977). See also Haselden v. State, 386 So. 2d 624 (Fla. 4th DCA 1980) (failure to timely raise a defect in an information constitutes a waiver of the defect unless the information wholly fails to charge a crime). We find the authority gr…
Authorities Cited
- The Honorable T. Edward Austin v. State of Fla. ex rel. Floyd T. Christian, 310 So. 2d 289 (Fla. 1975)
- Hart v. State, 144 Fla. 409 (Fla. 1940)
- Smith v. State, 349 So. 2d 820 (Fla. 1st DCA 1977)
- Carey v. State, 349 So. 2d 820 (Fla. 3d DCA 1977)
- In re Executive Assignment of State Attorney, 298 So. 2d 382 (Fla. 1974)