State v. Anderson
| Decision Date | 26 January 1989 |
| Docket Number | No. 72051,72051 |
| Parties | 14 Fla. L. Weekly 45 STATE of Florida, Petitioner, v. Jackie ANDERSON, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., and Georgina Jimenez-Orosa and Alfonso M. Saldana, Asst. Attys. Gen., West Palm Beach, for petitioner.
Richard L. Jorandby, Public Defender and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for respondent.
We review Anderson v. State, 526 So.2d 106 (Fla. 4th DCA 1988), to answer a certified question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Respondent was charged by information with burglary of a dwelling in violation of section 810.02(1), (3), Florida Statutes (1985), a felony of the second degree. One day prior to trial, the state filed an amended information charging first-degree burglary under section 810.021(1), (2)(a), Florida Statutes (1985). Immediately prior to trial, the state and respondent reached an agreement that the state would proceed on the original burglary charge, as evidenced by the following colloquy:
JACKIE ANDERSON
having been called as a witness on his own behalf, and after being first duly sworn by the Court, was examined and testified under the oath as follows:
Because the State filed at the last minute an Amended Information, you are legally entitled to a continuance, a delay in this matter.
Has your lawyer explained that to you and do you understand the choice is yours?
You have to answer me.
You have the right to require the State to refile the original charge and to proceed on that. In other words, to in effect nol-pros the amended charge and refile the original charge.
You could raise that as a defense or attack it on appeal if you were to be convicted on the original charge, do you understand that?
The Court with the consent of the State and the defense proceeds on the original Information and in all respects it is a viable charging document on which Mr. Anderson will be found guilty or not guilty depending on the decision of the jury.
Okay. Have a seat, Mr. Anderson. We will get underway.
Respondent was tried and found guilty of violating section 810.02(1), (3) and sentenced to four and one-half years in prison.
The district court reversed, relying on Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971), and Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (1946). The court reasoned that the filing of the amended information superseded the original information; therefore, when the state subsequently withdrew the amended information, no viable charging instrument remained. Article I, section 15 of the Florida Constitution requires that all prosecutions, with exceptions not pertinent here, be made by presentment, indictment, or information. The district court concluded that absent a valid charging instrument, the trial court lacked jurisdiction to proceed. The court rejected the argument that respondent's actions in agreeing to, even sponsoring, trial on the original charge constituted invited error of which respondent could not complain. This was so, the court concluded, because invited error or failure to object cannot confer jurisdiction on a court. In dissent, Judge Walden reasoned that the colloquy implicitly amended the existing (amended) information, that jurisdiction was uninterrupted, and that respondent waived any failure of the state to refile a corrected information. The district court certified the following question of great public importance:
[W]hether invited error can overcome the fact that technically the information has been extinguished by the filing of an amended information, or whether an information so extinguished can be revived by mutual agreement of the state, the defendant and the court.
We begin our examination by expressing agreement with many of the principles of law expressed by the district court. It is well settled that the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information. It is also clear, with exceptions not present here, that jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state. It is also well settled that the parties may not confer jurisdiction on a court. Nevertheless, under the facts present here and for the following reasons we conclude that the district court's reliance on Alvarez and Wilcox was misplaced and the decision below is in error.
In Alvarez, the defendant was charged by information with unlawfully and feloniously breaking and entering a building owned by another with the intent to commit grand larceny. After the trial commenced, testimony was introduced that the owner of the property as alleged in the information was erroneous and that the property was owned by another. Over objection, the state amended the information without refiling, the trial continued, and the defendant was convicted. Upon review, we concluded that the amendment was a matter of substance which under then well-settled law required dismissal of the charge and recommencement by refiling, rearraignment, repleading, and reselection of a jury. Because the original information had been vitiated, the defendant had been tried on a purported information which did not comply with the Florida Constitution. Relying on Alvarez, we again reversed a conviction in Sipos v. State, 90 So.2d 113 (Fla.1956), where the trial judge had permitted a similar substantive amendment of an information during trial and over the objection of the defendant. In Wilcox, the court applied Alvarez to a situation where the state filed an information describing a certain stolen car and then filed an amended information describing an entirely different car. On oral motion, without refiling and over the objection of the defendant, the state withdrew the amended information and trial was had on the original, superseded information. The court found this to be reversible error.
In relying on Alvarez and Wilcox, the district court apparently overlooked Lackos v. State, 339 So.2d 217 (Fla.1976) where we accepted jurisdiction of Lackos v. State, 326 So.2d 220 (Fla. 2d DCA 1976) because of conflict with Alvarez and Sipos. In Lackos, during trial and over the objection of the defendant, the state was permitted to substantively amend the information by correcting the name of the owner from which the property had been allegedly stolen. Revisiting Alvarez and Sipos, we concluded that Florida Rule of Criminal Procedure 3.140(o ), first adopted in 1967 and not addressed by Alvarez and Sipos, governed the resolution of such amendments, and, further:
We are persuaded by the reasoning articulated by Judge Grimes, writing for the District Court in the instant case:
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