State v. Polo, s. 39106

• Decision Date: 09 December 1970
• Docket Number: 39105 and 39104,Nos. 39106,s. 39106
• Citation: 242 So.2d 457
• Parties: STATE of Florida, Appellant, v. Albert POLO, Appellee. STATE of Florida, Appellant, v. Henry Lee CREAMER, Appellee. STATE of Florida, appellant, v. Jimmy WILLIAMS, Appellee.
• Court: Florida Supreme Court

Page 457

242 So.2d 457

STATE of Florida, Appellant, v. Albert POLO, Appellee.

STATE of Florida, Appellant, v. Henry Lee CREAMER, Appellee.

STATE of Florida, appellant, v. Jimmy WILLIAMS, Appellee.

Nos. 39106, 39105 and 39104.

Supreme Court of Florida.

Dec. 9, 1970.

Rehearing Denied Jan. 19, 1971.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellant.

Robert E. Jagger, Public Defender and James L. DeMoully, Asst. Public Defender, for Albert Polo and Jimmy Williams.

Kenneth E. Easley, Clearwater, for Henry Lee Creamer.

CARLTON, Justice.

The Circuit Court for the Sixth Judicial Circuit, Pinellas County, entered an Order Vacating the Judgment and Sentence in each of these three consolidated cases following disclosure of the fact that appellees' respective felony convictions stemmed from prosecutions initiated by informations which contained erroneously executed affidavits. The Court also held that Fla.Stat. § 906.04(2), F.S.A. which places limitations upon the opportunity to question the validity of an information, was unconstitutional as applied to the appellees. On direct appeal by the State under Article V, Section 4(2), Florida Constitution, F.S.A., we reverse the Order.

Appellees were convicted of the following separate, unrelated felonies: Polo, convicted of robbery in 1967; Creamer, convicted of aggravated assault in 1967; Williams, convicted of assault with intent to commit robbery in 1968. All three plead not guilty at the time of their arraignment. In each case, prosecution was initiated by an information signed by the late Clair Davis, Prosecuting Attorney for Pinellas County. Under Fla.Stat. § 906.04(1), F.S.A., which gave practical effect of Section 10, Declaration of Rights, Florida Constitution (1885) (now Article I, Section 15(a), Florida Constitution), all informations are to be subscribed by the prosecuting attorney and verified by his oath. Verification takes the form of an attachment to the information, referred to as an affidavit or a jurat, which contains a statement that the information has been personally sworn to and subscribed by the prosecuting attorney before the clerk of the court in which the information is filed.

It appears that late in 1968, appellees Polo and Creamer took note of an article printed in a St. Petersburg, Florida, newspaper in which it was stated that Mr. Davis had made it a practice to send informations to the Pinellas County Circuit Court clerk with the affidavit already signed. The article indicated that the clerk routinely filed the informations after completing his part of the presigned affidavit without question. Polo and Creamer filed Rule 1.850, 33 F.S.A. motions for vacating judgment and sentence in their respective cases on the premise that their informations had been among those pre-signed by Mr. Davis. They urged that Section 10 of the Declaration of Rights specifically provided that no person shall be tried for a felony upon an information unless the information has been '(U)nder oath filed by the prosecuting attorney of the court wherein the information is filed.' They also pointed out that Fla.Stat. § 906.04(1), F.S.A. states: 'All informations shall be subscribed by the prosecuting attorney, and verified by the oath of the prosecuting attorney.'

In resisting appellees' motions, the State argued that Fla.Stat. § 906.04(2), F.S.A. was controlling: 'No objection to any information on the ground that it was not subscribed or verified, as above provided, shall be made or entertained after moving to quash or pleading to the merits.' In response, appellees contended that the defects were masked by collusion between the prosecutor and the clerk and that since the defects were not apparent, it could not be said that appellees had knowingly and intelligently waived their constitutional right to a validly executed information. The Circuit Court accepted the propositions advanced by appellees and ruled in favor...