ULYSSES MURPHY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Murphy appeals his burglary conviction, arguing that the absence of a venue allegation in the burglary count requires reversal. The court affirms, holding that while venue is normally an essential element, the omission was not fundamental error where the defendant did not object below, five other counts alleged venue, and no prejudice was shown.
The court affirmed the conviction, holding that the absence of a venue allegation in one count of a multi-count information is not reversible error where the defendant failed to object below, did not claim prejudice, the trial court possessed jurisdiction, and the omission did not amount to a denial of due process.
[1] The absence of a venue allegation in a charging document is not a fundamental defect that can be raised for the first time on appeal if the defendant was not prejudiced a…
[2] An error must amount to a denial of due process to be considered so fundamental that it may be urged on appeal without being properly presented below.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“venue is an essential element of an indictment, and that the absence of a venue allegation is a fundamental defect”
Establishes the general rule from State v. Black regarding the importance of venue allegations in charging documents
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Join FLexlaw to unlock all legal intelligenceMurphy was charged with six counts in an information. Five counts, including a theft charge related to the same burglary, included venue allegations. …
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PER CURIAM.
Appellant seeks review of his conviction and sentence for the offense of burglary, contending that the absence of a venue allegation in this charge requires reversal. Appellant was adjudged guilty on each count of a six-count information, and each count, with the exception of the contested burglary charge, alleged venue. Appellant did not at any time prior to this appeal object to the absence of a venue allegation, and does not now allege that he was hampered in the preparation of his defense or otherwise prejudiced by this omission. One count of the information alleges the theft of property from the owners of the burglarized dwelling, and includes a venue allegation. In the circumstances of this case we find no reversible error and affirm the order appealed.
In State v. Black, 385 So. 2d 1372 (Fla.1980), the court held that venue is an essential element of an indictment, and that the absence of a venue allegation is a fundamental defect. The court expressly noted that in view of the secrecy which pervades grand jury proceedings and indictments, it is essential that the charging document facially indicate jurisdiction by alleging venue. Unlike Black, the present case involves a multiple-count information (with all but the contested charge alleging venue), rather than a single-count indictment. In Black the defendant objected at trial and sought to dismiss the indictment whereas in the present case appellant did not complain below and seeks now to raise the issue for the first time on appeal. In Ray v. State, 403 So. 2d 956 (Fla.1981), the court indicated that “for errors to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process.” In the present case the court below possessed jurisdiction and appellant has not alleged any prejudice from the omission of a venue allegation in the contested charge; we conclude that in the circumstances of this case the absence of a venue allegation was not a “denial of due process” and cannot be raised for the first time on appeal.
Accordingly, the order appealed is affirmed.
McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.
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Navarre v. State, 608 So. 2d 525 (Fla. 1st DCA 1992)…d not stand.” Id. at 308. We hold it was reversible error for the trial court to allow the battery conviction to stand under these facts because Appellant [*527] was prejudiced thereby. Ray v. State, 403 So. 2d 956, 960 (Fla.1981); Murphy v. State, 407 So. 2d 296 (Fla. 1st DCA 1981); Dydek v. State, 400 So. 2d 1255, 1258 (Fla. 2d DCA 1981). Accordingly, we reverse the battery conviction. See State v. Black, 385 So. 2d 1372 (Fla.1980); Powell v. State, 132 Fla. 659, 181 So. 901 (1938); McKinnie v. State, 44 F…
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State v. Stephens, 586 So. 2d 1073 (Fla. 5th DCA 1991)…on 316.1935, Fla.Stat. (1987). . Sections 806.13(l)(a) and 806.13(l)(b)(3), Fla. Stat. (1987). . Art. I, § 16, Fla. Const. . 15 Fla.Jur.2d Criminal Law § 566. . Fla.R.Crim.P. 3.140(o); Tucker v. State, 459 So. 2d 306 (Fla.1984); Murphy v. State, 407 So. 2d 296 (Fla. 1st DCA 1981). . Section 910.10, Fla.Stat. (1987); Tucker v. State, 100 Fla. 1440, 131 So. 327 (1930). . Copeland v. State, 457 So. 2d 1012 (Fla.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985); State v. Katz, 417 So…
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Melvee Tucker v. State, 417 So. 2d 1006 (Fla. 3d DCA 1982)…a. 4th DCA 1980). See also Ray v. State, 403 So. 2d 956, 961, n.8 (Fla.1981). On the question of waiver of defect in the charging document we see no rational basis for distinguishing between an information and an indictment. But see Murphy v. State, 407 So. 2d 296 (Fla. 1st DCA 1981). The indictment otherwise states a crime against Tucker, evidence of venue was produced at trial, and Tucker was not prejudiced in preparation or presentation of his defense, therefore he waived any objection to defect in the ind…
Authorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- State v. Theron Black, 385 So. 2d 1372 (Fla. 1980)