CHARLES LEE RADFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Radford was convicted of felony battery on a law enforcement officer and sentenced to eighteen months. The court reversed and vacated because the information charging him cited only the misdemeanor battery statute (784.03) rather than the felony statute (784.07(2)), depriving the circuit court of subject matter jurisdiction over the felony charge.
The court held that the information was defective because it failed to allege the essential elements required by the felony statute (784.07(2)), instead citing only the misdemeanor statute (784.03). This defect deprived the circuit court of subject matter jurisdiction, making the judgment and sentence void regardless of whether the defect was raised at trial.
[1] An information must allege each essential element of a crime to be valid; no essential element should be left to inference.
[2] A circuit court lacks jurisdiction over a felony offense when the information charges only a misdemeanor.
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Join FLexlaw to unlock all legal intelligence“An information must allege each of the essential elements of a crime to be valid; no essential element should be left to inference.”
Establishes the standard for validity of criminal informations and the basis for finding the charging document defective.
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Join FLexlaw to unlock all legal intelligenceRadford was charged with battery on Deputy Sheriff Thomas Boysen of Charlotte County while the officer was acting in his official duties. The informat…
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PER CURIAM.
Appellant Charles Lee Radford filed this appeal from his conviction and sentence for the felony offense of battery of a law enforcement officer under Section 784.07(2), Florida Statutes (1977). He contends that the information filed against him charged only simple battery, a misdemeanor under Section 784.03, Florida Statutes, and, therefore, the circuit court did not have jurisdiction over the offense, and the judgment of conviction of a felony and eighteen-month sentence are void. We agree and reverse.
The information in pertinent part charged appellant with “BATTERY ON POLICE OFFICER” in that he “did unlawfully commit battery upon THOMAS BOY-SEN, a Deputy Sheriff of Charlotte County, while acting in the capacity of his official duties, by actually and intentionally touching or striking said person against said person’s will, in violation of Florida Statute 784.03.” The felony battery statute is 784.-07(2) which provides in pertinent part as follows: “Whenever any person is charged with knowingly committing . . . battery upon a law enforcement officer . while the officer ... is engaged in the lawful performance of his duties, the offense for which the person is charged shall be ... a felony of the third degree.” (Emphasis supplied). The misdemeanor battery statute is 784.03. In pertinent part 784.03 reads as follows: “(1) A person commits battery if he: (a) Actually and intentionally touches or strikes another person against the will of the other; or (b) Intentionally causes bodily harm to an individual. (2) Whoever commits battery shall be guilty of a misdemeanor of the first degree . . . .”
It is quite clear that the language of the information under which appellant was charged does not track the statutory language of Section 784.07(2). An information must allege each of the essential elements of a crime to be valid; no essential element should be left to inference. State v. Dye, 346 So. 2d 538 (Fla. 1977). In addition the information concludes with the usual reference to the pertinent statutory section which in this case alleges “in violation of Florida Statute 784.03,” which is the misdemeanor statute.
Since the information charged a misdemeanor and not a felony, the circuit court did not acquire jurisdiction over the subject matter, and the judgment and sentence against appellant are void. Although the defect was not raised in the trial court, being jurisdictional it cannot be cured by waiver or consent. Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So. 2d 99 (Fla. 1973).
Accordingly, the judgment and sentence herein are vacated and the cause is reversed and remanded for further proceedings consistent with this opinion.
HOBSON, Acting C. J., BOARDMAN and OTT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)…cuit court jurisdiction. The state points out that appellant failed to make this objection at the time he was originally placed on probation and that he is raising it for the first time on this appeal from the revocation order. In Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978), the information charging “battery on [a] police officer” was worded practically the same as the information in the instant case, though the Radford information referred to the misdemeanor statute proscribing battery. Our court he…
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Gray v. State, 404 So. 2d 388 (Fla. 5th DCA 1981)…s void. See, e. g., Nelson v. State, 398 So. 2d 920 (Fla. 5th DCA 1981) (information charging defendant with willfully or carelessly burning a field only charged a misdemeanor and circuit court therefore did not have jurisdiction); Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978) (information that failed to allege defendant “knowingly” battered a law enforcement officer failed to charge a felony and jurisdiction of the battery alleged was in the county court); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 197…
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Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979)…such a defect cannot be so cured and the felony court wherein the offense is lodged has no jurisdiction over it. Shanklin v. State, supra. Furthermore, subject matter jurisdiction cannot be cured by consent, waiver or acquiescence. Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977). The record discloses no amendment of the information in this case. As we have noted, the evidence would support a verdict that the stolen television had a value of over $100,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- State v. Pope, 283 So. 2d 99 (Fla. 1973)