Desmond v. State
| Decision Date | 08 February 1991 |
| Docket Number | No. 90-00474,90-00474 |
| Citation | 576 So.2d 743,16 Fla. L. Weekly 431 |
| Parties | 16 Fla. L. Weekly 431 James Francis DESMOND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gregory N. Burns, Fort Myers, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.
Desmond challenges his convictions for kidnapping, armed robbery, aggravated battery, and aggravated assault. We affirm.
In a two-count information dated April 20, 1989, Desmond and Adam Lee Mathis were charged with kidnapping and armed robbery. On June 21, 1989, the state filed an amended information consisting of eight counts. Only Mathis was named in this amended information. On July 7, 1989, the state filed a second amended information which duplicated the first amended information except that Desmond's name was added to the caption of the document. Only Mathis, and not Desmond, was named in the body of the information which set forth the charges. Not until after trial and conviction on six of the eight counts did Desmond move for discharge, contending that the court lacked personal jurisdiction over him because he was not named in the body of the charging document. The trial court entered an order denying the motion, from which order this appeal is taken.
Desmond relies on Russell v. State, 349 So.2d 1224 (Fla.2d DCA 1977), for support of his position that the trial court's lack of personal jurisdiction over him now requires his discharge. In Russell, the names of the defendants were omitted from two counts of a multi-count indictment. The omission was discovered prior to trial and the trial court permitted the prosecutor to amend the indictment to add the omitted names. In reversing, this court held that an indictment may only be amended by the grand jury and the purported amendment by the prosecutor was a nullity. Therefore the trial court failed to acquire in personam jurisdiction over the defendants as to those charges. This case, although facially similar, is distinguishable. Here, Desmond entered pleas of not guilty as to each count of the second amended information and waived his right "to object to any technical deficiencies in the Information"; moved for discharge under the speedy trial rule; proceeded to trial without objection; and sought and obtained a judgment of acquittal as to two of the charges at the close of the state's case. Only...
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...there were multiple co-defendants and multiple charges, and it got a little confusing. Those cases have since been clarified in Desmond v. State, 576 So.2d 743, which is a Second DCA 1991. And in Rigell v. State, . . . 782 So.2d 440, Florida Fourth DCA, 2001. So we do not have a defective i......
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