Benitez v. State, 5004
| Decision Date | 24 February 1965 |
| Docket Number | No. 5004,5004 |
| Citation | 172 So.2d 520 |
| Parties | Raymond BENITEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joseph G. Spicola, Jr., Public Defender and Judge C. Luckey, Jr., Asst. Public Defender, Tampa, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.
BARNS, PAUL D., Associate Judge.
On Information, the appellant-defendant was charged, convicted, and sentenced for being guilty of violating Section 790.23, F.S.A. We affirm.
Section 790.23, F.S.A. reads:
'(2) This section shall not apply to a person having been convicted of a felony whose civil rights have been restored.'
Appellant's assignments of error are not addressed to any judicial act, but are addressed to the verdict of the jury; hence, they are insufficient in law, Appellate Rule 3.5(c), 31 F.S.A.; however, we will review appellant's point relied on for reversal, which is:
WAS THE STATE REQUIRED TO PROVE, PRODUCE OR SUBMIT EVIDENCE TO SHOW THAT APPELLANT'S CIVIL RIGHTS HAD NOT BEEN RESTORED?
Our answer to this proposition is in the negative. Paragraph (2) of § 790.23, F.S.A., is an exception to the rule of law prescribed in paragraph (1). Section 906.12, F.S.A., provides that, 'No indictment or information for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense.' This statute is consistent with the decisional law as announced in Baeumel v. State, 26 Fla. 71, 7 So. 371, holding that if there is an exception in the enacting clause of a statute the party pleading must show that his adversary is not within the exception, but (as in the enactment of § 790.23, supra) if there is an exception in a subsequent clause, or a subsequent statute, that is a matter of defense, and is to be shown by the other party See also Ferrell v. State, 45 Fla. 26, 34 So. 220. 'Matters that are not essential elements of the offense, but...
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...Fla.App.1963, 152 So.2d 526; Miller v. Griffin, Fla.App.1963, 154 So.2d 333; Shaw v. Puleo, Fla.1964, 159 So.2d 641; Benitez v. State, Fla.App.1965, 172 So.2d 520; Hall v. State, Fla.App.1967, 203 So.2d 202; Meehan v. Seaboard Air Line Railroad Company, Fla.App.1968, 210 So.2d 476; Sears, R......
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...accused has regained full status as a citizen. The burden is on the accused to prove that he has regained such status. Benitez v. State, 172 So.2d 520 (Fla.App.1965). The order of the Superior Court of Pima County quashing the information is set aside and vacated and the Superior Court of P......
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...pockets with revolvers or dynamite, and make of himself a dangerous nuisance to society.'See, 13 Fla.L.J. 253 (1939).3 Benitez v. State, 172 So.2d 520 (Fla.App.2nd 1965); Maloney v. State, 146 So.2d 581 (Fla.App.2nd 1962).4 Cases v. United States, 131 F.2d 916 (C.C.A.1st 1942), cert. denied......
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Delaney v. State, 76--997
...trial court to correct the form of the verdict and, therefore, no error has been preserved for review by this court. Benitez v. State, 172 So.2d 520 (Fla.4th D.C.A. 1965); Hall v. State, 203 So.2d 202 (Fla.2nd D.C.A. 1967); Jones v. State, 248 So.2d 517 (Fla.3rd D.C.A. 1971); McPhee v. Stat......