Sinclair v. State
| Decision Date | 04 April 1950 |
| Citation | 46 So.2d 453 |
| Parties | SINCLAIR v. STATE. |
| Court | Florida Supreme Court |
Harry Newett, Edgar C. Thompson and L. R. Baker, West Palm Beach, for appellant.
Richard W. Ervin, Attorney General, Phillip Goldman and Murray Sams, Jr., Assistant Attorneys General, for appellee.
The appellant, Harold E. Sinclair, was informed against on November 30, 1948, in the Criminal Court of Record of Palm Beach County, Florida, for the crime of forgery. He was duly arraigned and placed upon trial before a jury, which considered the testimony and returned a verdict of guilty. The trial court sentenced the appellant to serve for the offense a period of two years at hard labor in the State Prison. An appeal has been perfected here.
The information was drafted under the provisions of Section 831.01, F.S.A., and pertinent portions thereof are viz.:
'W. E. Roebuck, County Solicitor for the County of Palm Beach, prosecuting for the State of Florida in the said County, under oath information makes that Harold E. Sinclair of the County of Palm Beach and State of Florida, on the 1st day of October in the year of our Lord, one thousand nine hundred and forty-Eight in the County and State aforesaid, did unlawfully, feloniously, and falsely, make, forge and counterfeit a certain writing on paper, to-wit: a certain bank check or order for money, the tenor whereof is as follows:
"Kahn's
Pahokee, Florida
Pay to the order of H. E. Sinclair $700.00
Kahn's ** 700 DOL'S 00 CTS Dollars
Bank of Pahokee
Pahokee, Florida
Kahn's
'That is to say that on said date the said Harold E. Sinclair did unlawfully and feloniously alter and change said check from One Hundred Dollars to Seven Hundred Dollars after the genuine signature of Joseph Kahn had been secured to said check, contrary to the form of the Statute in such case made and provided, against the peace and dignity of the State of Florida'.
It appears by the record that the appellant did not file a motion to quash the information or point out any of its alleged irregularities or defects prior to arraignment but entered a plea of not guilty and proceeded to trial by obtaining a jury, and through counsel examined or cross-examined the State's witnesses adduced by the prosecution; and, during the progress of the trial, objected to the introduction of the alleged forged instruments into evidence. For the first time, after the jury's verdict, and in a motion for a new trial counsel contends that the information was fatally defective in that it failed or omitted to allege that the appellant committed forgery 'with the intent to defraud', which is an essential element under Section 831.01, supra.
An explanation for the delay on the part of counsel for the appellant in not pointing out the alleged defects in the information until after the jury's verdict is not clearly shown. The law frowns upon the policy of remaining silent as to fatally defective informations until after the verdict and then for the first time assert these alleged rights in a motion for a new trial. It was counsel's duty under the law to bring to the attention of the trial court the alleged defective information prior to pleading thereto. Section 909.06, F.S.A., makes it the duty of a defendant to file his motion to quash the information prior to pleading thereto and if he fails to file the motion to quash prior to pleading to the information, 'he shall be taken to have waived all objections which are grounds for a motion to quash.' See West v. State, 149 Fla. 436, 6 So.2d 7, and Fuller v. State, 159 Fla. 200, 31 So.2d 259.
Counsel cites many of our decisions prior to the adoption of our Criminal Code, as well as authorities from other jurisdictions, to sustain the contention that the verdict of the jury failed to cure the defect in the information as it was a matter of substance and the trial court was without jurisdiction because of the defective pleading. This contention is answered by Wharton's Criminal Law, Vol. (12th ed.) 380-381, par. 292, viz.: ...
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Tucker v. State
...does not apply, and failure to timely object to this defect, constitutes waiver. Tracey v. State, 130 So.2d 605 (Fla.1961); Sinclair v. State, 46 So.2d 453 (Fla.1950); Kane v. State, 392 So.2d 1012, (Fla. 5th DCA 1981); Selley v. State, 403 So.2d 427 (Fla. 5th DCA 1980); Haselden v. State, ......
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Harris v. Wainwright
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Florida Rules of Criminal Procedure., In re
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DuBoise v. State
...... The reason for this provision is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial. See Sinclair . Page 265. v. State, 46 So.2d 453 (Fla.1950); State v. Cadieu, 353 So.2d 150 (Fla. 1st DCA 1977). Hence a charging document which is subject to pre-trial dismissal can nevertheless withstand a post-trial motion for arrest of judgment. For example, the failure to include an ......