Catanese v. State, No. 70--1002

CourtFlorida District Court of Appeals
Writing for the CourtOWEN
Citation251 So.2d 572
PartiesOrlando CATANESE, Appellant, v. STATE of Florida, Appellee.
Decision Date26 May 1971
Docket NumberNo. 70--1002

Page 572

251 So.2d 572
Orlando CATANESE, Appellant,
v.
STATE of Florida, Appellee.
No. 70--1002.
District Court of Appeal of Florida, Fourth District.
May 26, 1971.
Rehearing Denied July 19, 1971.

Max Lurie, of Lurie & Capuano, Miami, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Herbert P. Benn, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, Judge.

Appellant made a bargain which he does not like and which we say he does not have to keep.

Page 573

Orlando Catanese and Kathy Newton initially were jointly charged in a four-count information with (I) possession of burglary tools, (II) attempting to bribe a police officer, (III) damaging or injuring telephone equipment, and (IV) breaking and entering a telephone booth with intent to commit a misdemeanor, to-wit: petit larceny. Upon arraignment a plea of not guilty was entered. At a later date, aided by counsel, appellant withdrew his not guilty plea as to Count IV and entered a plea of guilty. The state then nol prossed the remaining three counts against appellant and all counts against Kathy Newton, presumably the quid pro quo for appellant's guilty plea to Count IV. The court accepted the guilty plea, adjudicated appellant guilty and imposed a two-year sentence.

Count IV of the information charged in the following language:

'Informant aforesaid, under oath, further information makes that ORLANDO CATANESE and KATHY NEWTON on the 22nd day of December, 1968, in the county and state aforesaid, unlawfully did then and there break and enter a telephone booth, the property of SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, a corporation with intent then and there to commit a misdemeanor, to-wit: petty larceny, by then and there taking, stealing and carrying away property of another of the value of less than One Hundred Dollars.'

The information was intended to have been framed under the provisions of F.S.1967, section 810.05, F.S.A., as follows:

'Whoever breaks and enters or enters without breaking any dwelling or store house, or any building, ship, vessel, or railroad car with intent to commit a misdemeanor, shall be punished by imprisonment in the state prison or county jail not exceeding five years, or by fine not exceeding five hundred dollars.'

It is manifest that the information was legally insufficient. It would have been subject to a timely motion to dismiss under Rule 1.190 CrPR, 33 F.S.A., or a timely motion in arrest of judgment under Rule 1.610(a)(1) CrPR. The nature of the insufficiency is important. If the insufficiency of the information is such that the information does not wholly fail to charge a crime against the defendant, the failure to timely raise the defect by motion to dismiss constitutes a waiver of such insufficiency. Tracey v. State, Fla.1961, 130 So.2d 605;...

To continue reading

Request your trial
31 practice notes
  • Torrence v. State, No. 80-470
    • United States
    • Court of Appeal of Florida (US)
    • 4 d2 Outubro d2 1983
    ...overruled in Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971); Johnson v. State, 226 So.2d 884 (Fla. 2d DCA Only because of Pitts v. State, 425 So.2d 542 (Fla.1983), do I agree that th......
  • State v. Gray, No. 61381
    • United States
    • United States State Supreme Court of Florida
    • 21 d4 Julho d4 1983
    ...(Fla.1977); La Russa v. State, 142 Fla. 504, 196 So. 302 (1940); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA Therefore, if, as the district court found, the information in this case in fact wholly failed to contain allegations of two es......
  • Flarity v. State, No. 87-337
    • United States
    • Court of Appeal of Florida (US)
    • 23 d4 Junho d4 1988
    ...overruled, Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971); Johnson v. State, 226 So.2d 884 (Fla. 2d DCA Flarity's convictions of, and punishment for, felony petit theft should be rev......
  • Hope v. State, No. 90-1691
    • United States
    • Court of Appeal of Florida (US)
    • 10 d4 Outubro d4 1991
    ...is incorrect. Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), quashed on other grounds, 435 So.2d 816 (Fla.1983); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). Moreover, the plea of guilty or nolo contendere does not waive an infirmity in the form of an information which is fatal ......
  • Request a trial to view additional results
31 cases
  • Torrence v. State, No. 80-470
    • United States
    • Court of Appeal of Florida (US)
    • 4 d2 Outubro d2 1983
    ...overruled in Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971); Johnson v. State, 226 So.2d 884 (Fla. 2d DCA Only because of Pitts v. State, 425 So.2d 542 (Fla.1983), do I agree that th......
  • State v. Gray, No. 61381
    • United States
    • United States State Supreme Court of Florida
    • 21 d4 Julho d4 1983
    ...(Fla.1977); La Russa v. State, 142 Fla. 504, 196 So. 302 (1940); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA Therefore, if, as the district court found, the information in this case in fact wholly failed to contain allegations of two es......
  • Flarity v. State, No. 87-337
    • United States
    • Court of Appeal of Florida (US)
    • 23 d4 Junho d4 1988
    ...overruled, Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971); Johnson v. State, 226 So.2d 884 (Fla. 2d DCA Flarity's convictions of, and punishment for, felony petit theft should be rev......
  • Hope v. State, No. 90-1691
    • United States
    • Court of Appeal of Florida (US)
    • 10 d4 Outubro d4 1991
    ...is incorrect. Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), quashed on other grounds, 435 So.2d 816 (Fla.1983); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). Moreover, the plea of guilty or nolo contendere does not waive an infirmity in the form of an information which is fatal ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT