State v. Perkins

• Decision Date: 15 February 2008
• Docket Number: No. 5D07-1318.,5D07-1318.
• Parties: STATE of Florida, Appellant, v. Will Beacham PERKINS, Appellee.
• Court: Florida District Court of Appeals

977 So.2d 643

STATE of Florida, Appellant, v. Will Beacham PERKINS, Appellee.

No. 5D07-1318.

District Court of Appeal of Florida, Fifth District.

February 15, 2008.

Rehearing Denied March 31, 2008.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellee.

PLEUS, J.

The State appeals from an amended order dismissing a criminal prosecution pursuant to Florida Rule of Criminal Procedure 3.140.

The defendant was charged by information with driving while license suspended or revoked, having been twice previously convicted of the offense of driving while license suspended, a third degree felony. At arraignment, the defendant pled not guilty. Thereafter, the defendant filed a motion to dismiss, claiming that the information was not properly sworn. The trial court agreed, granted the motion and then entered an amended order dismissing the case.

On appeal, the State argues that the trial court erred in entertaining the motion under Florida Rule of Criminal Procedure 3.140(g), where the defendant pled to the merits, and further that the information was supported by sworn testimony and was otherwise valid. We agree with both contentions and accordingly, reverse.

On August 17, 2006, the defendant was stopped while driving a vehicle with an expired tag. When Deputy Blankenship ran a computer check of the defendant, he discovered that the defendant's driver's license was not valid. The deputy arrested the defendant for driving while license suspended and charged him by issuing a traffic citation.

After obtaining a copy of the defendant's driving record, the prosecutor learned that the defendant had two prior convictions for driving while license suspended and charged the defendant by sworn information with one felony count of driving while license suspended after two prior convictions. The defendant was arraigned on January 24, 2007, and entered a plea of not guilty.

On February 5, 2007, the defendant filed a motion to dismiss the information on the basis that Deputy Blankenship's charging affidavit did not contain sworn testimony that the defendant had two or more prior convictions for driving while license suspended. It further asserted that "counsel for the defendant is unaware of any testimony, taken under oath, that formed the basis of the enhanced charges."

On March 8, 2007, the State filed a motion requesting the court take judicial notice of the defendant's driving record.

On April 3, 2007, a hearing on the motion to dismiss was held. Defense counsel asserted that under Rule 3.140, the State was only permitted to charge a defendant with a felony based on testimony taken under oath. Defense counsel argued that the only testimony that had been taken was the charging' affidavit of Deputy Blankenship, which did not mention the defendant's prior record. The State countered that the information was based on the defendant's driving record as well as the charging affidavit.

The trial court asked defense counsel why he entered a plea of not guilty if he wanted to challenge the information, noting that Rule 3.140(g) states that no objection to an information on the ground that it was not signed or verified can be entertained after the defendant pleads to the merits. Defense counsel informed the court that he brought this issue to the attention of the court at arraignment and the court stated it remembered so.

The court then announced:

All right. I'll grant the motion. I think we should have extended the arraignment and not entered any formal plea, but I do recall the discussion at the bench on that day when we were here for arraignments. I know the State wasn't — was a different State Attorney; they weren't here. But based on that, I — think your point is well taken. You did alert — alert us to the issue that you were going to be filing the motion, so I'll find that it does fall without the excusatory language of (g) at the very end. So I'll grant the motion.

The standard of review of a trial court order on a motion to dismiss is de novo. State v. Walthour, 876 So.2d 594 (Fla. 5th DCA 2004).

Florida Rule of Criminal Procedure 3.140(g) provides:

Signature, Oath and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good fair in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entered after the defendant pleads to the merits.

It has long been Florida law that technical deficiencies or defects in form may be waived by failure to make timely objection or by a plea to the merits. Champlin v. Cochran, 125 So.2d 565 (Fla. 1961); Bryan v. State, 41 Fla. 643, 26 So. 1022 (1899). Rule 3.140(g) adopts this law in connection with issues relating to signing and verifying informations.

The contention that a defendant can plead to an information, yet nevertheless reserve the right to thereafter challenge technical deficiencies relating to signing or verification of the information, runs counter to the clear language of Rule 3.140(g). The reason for this procedural rule precluding objections to an information on the ground that it was unsigned or unverified after the defendant pleads to the merits of the cause is because such a defect can readily be cured if timely raised. Byrd v. State, 730 So.2d 382 (Fla. 3d DCA 1999). Under the defendant's position, at what point would a purported reservation of the right to challenge these technical deficiencies expire? Rule 3.140(g) creates a clear line of demarcation, requiring technical challenges relating to the signing or verification of aspects of an information be brought before the defendant enters a plea to the merits or they are otherwise waived. Once a defendant pleads to the information, he can no longer object to the document on the ground that it was not properly signed or verified. To assert otherwise is to ignore the clear language of the rule. Not only was the defendant's motion untimely, it also lacked merit.

Article I, section 15(a) of the Florida Constitution, requires that an information charging a felony be made...