Lowman v. State, 74--73
| Decision Date | 08 November 1974 |
| Docket Number | No. 74--73,74--73 |
| Citation | 303 So.2d 667 |
| Parties | Homer Robert LOWMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Bruce J. Daniels, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant's probation was revoked for admitted violations of the conditions of probation, whereupon he was sentenced to a term in the state prison for the substantive offense of which he theretofore had been adjudged guilty, to-wit: false imprisonment. The appeal is from the order of revocation.
By information, appellant was charged with Assault with intent to commit rape contrary to Section 784.06, F.S. To that charge he entered a plea of not guilty. When the case was called for trial, appellant requested and received permission of the court to withdraw his plea of not guilty to the charge and in lieu thereof and Without amendment to the information he was permitted to enter a plea of nolo contendere to the 'lesser included offense of false imprisonment'. The court adjudged appellant guilty of the offense of false imprisonment and placed him on probation. This was in February, 1970. In November, 1973, appellant's probation was revoked, and thereafter he was sentenced on the charge of false imprisonment to a term of two years in prison with credit for certain time served.
Appellant's sole point on this appeal is that the court did not have jurisdiction to accept the plea of nolo contendere because false imprisonment is not a lesser included offense of the charge of assault with intent to commit rape.
We agree that false imprisonment is not a lesser included offense of the charge of assault with intent to commit a felony, to-wit: rape. Nor in this particular case were the essential elements of the offense of false imprisonment alleged in the information in such a manner that it could be said that false imprisonment was included in the offense charged by virtue of the wording of the accusatory pleading. Nonetheless, we conclude on the rationale of the Meyers case, infra, that the trial court did have jurisdiction to accept a plea of nolo contendere to the offense for which appellant now stands convicted, to-wit: false imprisonment.
In the case of State v. Meyers, 1964, 256 Iowa 801, 129 N.W.2d 88, the...
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...information was subsequently orally amended did not have the effect of divesting the court of jurisdiction."). In Lowman v. State, 303 So.2d 667 (Fla. Dist.Ct.App.1974), the Court of Appeals of Florida again noted that it would be better practice to require that an amended accusatory pleadi......
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Causey v. State
...to the giving of the charge, the error is fundamental. Johnson v. State, Fla.App.2d, 1969, 226 So.2d 884. The cases of Lowman v. State, Fla.App.4th, 1974, 303 So.2d 667, and Burns v. State, Fla.App.2d, 1974, 300 So.2d 317, cited by the State, involved pleas of nolo contendere and guilty and......
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Shanklin v. State, 78-654
...have been misled by the defect in the information, do the precedents cited above require reversal? We think not. In Lowman v. State, 303 So.2d 667 (Fla. 4th DCA 1974), the defendant was charged with assault with intent to commit rape and was later permitted to enter a plea of nolo contender......
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Jones v. State
...to convict on the basis of such pleas and the appellants are estopped from assigning as error that which they induced. Lowman v. State, 303 So.2d 667 (Fla. 4th DCA 1974); Andrews v. State, 343 So.2d 844 (Fla. 1st DCA As has been noted, the appellant here made no objection to the court's giv......