Hope v. State, 90-1691
| Decision Date | 10 October 1991 |
| Docket Number | No. 90-1691,90-1691 |
| Parties | Charles Robert HOPE, Appellant, v. STATE of Florida, Appellee. 588 So.2d 255, 16 Fla. L. Week. D2642 |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Paolo G. Annino, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellee.
On January 3, 1990, Charles Robert Hope was charged with DUI under a uniform traffic citation. It was soon discovered that he had been convicted of three previous DUI offenses in Minnesota. The state, upon learning of these previous offenses, moved to transfer the cause to the circuit court alleging jurisdiction pursuant to section 316.193(2)(b) and attached certified copies of the previous convictions to its motion. The county court ordered the transfer.
The state then filed an information alleging:
Felony Driving Under the Influence of Alcoholic Beverage or Controlled Substance, in Violation of F.S.316.193, a Third Degree Felony.
The information then alleged the specific elements of the particular DUI offense to be tried by the jury but did not allege the three previous convictions as specific elements of the felony charge. Hope, with full knowledge of the charge against him and having been furnished with certified copies of the three underlying convictions, pled nolo contendere to the charge of felony DUI without reserving the right to appeal.
Hope initially appealed, by Anders brief, the judge's revocation of his driver's license. We required that the jurisdictional issue be raised by supplemental brief. The issue before us is whether, under the facts of this case, and in light of State v. Rodriguez, 575 So.2d 1262 (Fla.1991), the circuit court had jurisdiction. We hold that it did and affirm.
State v. Phillips, 463 So.2d 1136 (Fla.1985), involves an analogous problem. There the issue was whether the two prior theft convictions necessary to establish felony petit larceny had to be pleaded as essential elements in the information in order to invoke circuit court jurisdiction. The Supreme Court held that where the defendant received "proper and sufficient notice of the charges against her and of the prior convictions on which the state based the felony petit theft charge" (i.e., due process notice having been given) such prior convictions need not be alleged in the information stating:
We hold that, on the facts of this case, the labeling of the charge as Felony Petit Theft coupled with citation to the statute which defines the substantive crime and the recitation of the facts which would support conviction under the statute is a sufficiently "definite statement of the essential facts constituting the offense charged." Thus it is adequate notice of the facts absent a timely objection or motion to dismiss.
It is urged that since section 316.193 defines three separate felonies (only In Layman v. State, 455 So.2d 607 (Fla. 5th DCA 1984), rev. denied, 459 So.2d 1040 (Fla.1984) this court held that:
two of them third degree) and since the information did not designate the particular subsection it relied on (although the notice invoking circuit court jurisdiction filed in the county court did), the information did not charge a specific felony. But the important fact is that Hope was charged with a felony, even if inadequately, under a statute which included felony DUI based on three previous convictions and which defined such substantive charge and recited the facts which would support a conviction. It is evident that the information alleges some felony--hence circuit court jurisdiction. The fact that the allegations are legally insufficient and would be subject to dismissal upon motion does not render the information void so that the circuit court cannot permit an amendment to cure the defect
A Florida Uniform Traffic Citation ... alleging a violation of section 316.193, without specification of either subsection (1)(a) or (1)(b), is sufficient to charge a violation of this statute in either of the two ways it can be violated.
The dissent distinguishes Layman by saying that since the defendant in Layman was charged with but one misdemeanor which could be committed in either (or both) of two ways it was not necessary for the charging document to specify which subsection was being relied on. But in this case there is a single offense alleged--third degree felony driving under the influence of alcoholic beverage which can be committed in either (or both) of two ways: the fourth DUI conviction [316.193(2)(b) ] or operating a vehicle while under the influence causing serious bodily injury to another [316.193(3)(c)2]. Since the charging document in this case did not charge the misdemeanor or the second degree felony, but only a third degree felony that can be committed in either of two ways, it seems remarkably similar to Layman.
In Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984), aff'd, 474 So.2d 1192 (Fla.1985) we held that if an information alleges either a felony or a misdemeanor in the alternative, the circuit court, nevertheless, has jurisdiction. The misdemeanor allegation was held mere surplusage. Fike was followed by Mobley v. State, 460 So.2d 383 (Fla. 5th DCA 1984), aff'd, 475 So.2d 1239 (Fla.1985). In these cases allegations of felony even in the alternative was sufficient to invoke circuit court jurisdiction. Alleging a specific felony (third degree felony driving under the influence)--even if alleged insufficiently so that amendment would be required, is sufficient to invoke the jurisdiction of the court.
State v. Gray, 435 So.2d 816 (Fla.1983) holds:
Where an indictment or information wholly omits to allege one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state.
But Gray does not hold that such defective information cannot be amended, in court, to include such essential elements. And Phillips has made suspect the current validity of Gray in applying a strict "four corners of the charging document" rule (as the dissent does herein) in cases such as this where the defendant is not embarrassed in the preparation of his defense and where there is no threat of subsequent prosecution for the same offense.
As the Phillips court stated:
Any defect in the information filed is clearly one of form, not of substance, as evidenced by the fact that both parties were willing and able to proceed to trial in circuit court on the charge of felony petit theft. There is no claim that the information is "so vague, indistinct and indefinite as to mislead the accused or embarrass [her] in the preparation of [her] defense." Neither is there any "danger of a new prosecution of the same offense." This court has, in recent years, recognized these two considerations as the primary rationale for the common-law "four corners of the charging document" rule. With increased discovery in criminal trials, we have found these protections to be afforded defendants Phillips at 1138.
without the rigid application of that rule.
In our case, Hope, after receiving record notice (although not contained in the information) as to which subsection of the statute the state was relying on, along with copies of the underlying convictions, pled to the charge. We hold, consistent with Brlecic v. State, 456 So.2d 503 (Fla. 2d DCA 1984), that pleading to an offense acknowledging the existence of unpled essential elements, implicitly amends the information to include them. 1 Hope was not misled in his defense nor is there any danger that he may again be prosecuted for the same offense. A rigid application of the "four corners of the charging document" rule is inappropriate under the Phillips rationale.
Rodriguez v. State, supra, is not inconsistent with this holding. In Rodriguez, the defendant went through trial and was convicted of felony DUI when "the state failed to give the defendant any notice of the alleged prior DUI convictions it intended to establish to prove the felony DUI." Rodriguez at 1267. Even so, and although the essential element of these prior convictions was not alleged in the information, the court upheld the jurisdiction of the circuit court. 2
Although Rodriguez held that the fact of the prior DUI convictions is an essential element of the offense of felony DUI and must be pleaded in the information while Phillips held that the prior petit theft convictions need not be so pleaded in the charge of felony petit theft, this difference may be explained by the facts. In Phillips there was no due process concern. Adequate notice of the prior convictions had been given. Not so in Rodriguez where the court held: "To protect the right to fair notice, ... we conclude that the state must allege the specific prior DUI convictions in the charging document." Rodriguez at 1266.
It is noteworthy that Rodriguez relies on State v. Harris, 356 So.2d 315 (Fla.1978) for the proposition that the prior convictions are elements of the substantive offense. In Harris the state asserted its right to plead and prove the prior conviction because they were elements of felony petit theft. The court conceded that they were indeed elements of the offense but, without stating whether they should be pleaded in the information or otherwise, held:
The Legislature had the right to create the substantive offense of "felony petit larceny," but we have the right to dictate the procedure to be employed in the courts to implement it ... upon conviction of the third petit larceny, the court shall, in a separate proceeding, determine the historical fact of prior convictions and questions regarding identity in accord with general principles of law, and by following the procedure now employed under section 775.084. (Emphasis added.)
Since section 775.084, the habitual offender statute,...
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