State v. Swartz
| Decision Date | 05 May 1999 |
| Docket Number | No. 98-2600.,98-2600. |
| Parties | STATE of Florida, Appellant, v. Brian Edward SWARTZ, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Robert R. Wheeler, Assistant Attorney General, West Palm Beach, for appellant.
Fredrick R. Susaneck of Essen, Essen, Susaneck, Canet & Lipson, P.A., West Palm Beach, for appellee.
The state appeals the dismissal of an information charging Brian Swartz with felony driving under the influence pursuant to section 316.193(1) & (2)(b). We reverse and remand for reinstatement of the information.
Swartz filed several unsworn motions seeking dismissal of the information on various grounds including an alleged lack of circuit court jurisdiction based either on the remoteness of two of his three prior DUI convictions, or his contention the felony DUI statute requires four DUI convictions before jurisdiction vests in the circuit court. The circuit court dismissed Swartz's information relying on a per curiam affirmance this court issued in State v. Breen, 709 So.2d 546 (Fla. 4th DCA 1998).
Swartz's citation before the trial court to our per curiam affirmance decision in Breen was improper, as was the trial court's reliance on that per curiam affirmance. As has been stated countless times before, a per curiam affirmance decision without written opinion has no precedential value and should not be relied on for anything other than res judicata. E.g., Dep't of Legal Affairs v. District Court of Appeal, 5th Dist., 434 So.2d 310, 311 (Fla. 1983)
. Without a written opinion, the trial court could only speculate regarding the rationale underlying this court's per curiam affirmance decision. Id. at 312-13. By way of illustration, our court file in Breen reveals it was unnecessary to reach the issue of whether jurisdiction vested in the circuit court on Breen's fourth DUI offense because the state failed to file a traverse to Breen's sworn rule 3.190(c) motion to dismiss which alleged an involuntary prior conviction. Thus, the trial court's reliance on our per curiam affirmance in Breen was misplaced.
Contrary to the argument Swartz advanced below, this court has recently reiterated the well settled rule that "the existence of three or more prior DUI convictions" is an element of the charge of felony DUI under section 316.193(2)(b), Florida Statutes (1995). Harbaugh v. State, 711 So.2d 77 (Fla. 4th DCA 1998) (citing State v. Woodruff, 676 So.2d 975, 977 (Fla.1996)). Thus, the dismissal of Swartz's information on the basis a fourth DUI conviction was an element of felony DUI was in error.
The only other basis on which the dismissal could be upheld is if Swartz was correct in asserting that two of his prior DUI convictions occurring in 1974 and 1976 were too remote in...
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...has no precedential value and should not be relied on for anything other than res judicata. As this court held in State v. Swartz, 734 So.2d 448 (Fla. 4th DCA 1999): As has been stated countless times before, a per curiam affirmance decision without written opinion has no precedential value......
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...curiam affirmance. See St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So.2d 244, 248-49 (Fla. 4th DCA 2005) (citing State v. Swartz, 734 So.2d 448 (Fla. 4th DCA 1999)) (acknowledging that "a per curiam affirmance without written opinion, even one with a written dissent, has no precedentia......
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