STATE OF FLORIDA, APPELLANT,
v.
KNOX O'NEAL, APPELLEE
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The State appealed a lower court order quashing three informations (criminal charges) against Knox O'Neal for embezzlement. The court upheld the quashing because the charges were barred by the statute of limitations after the State had abandoned the original prosecution and refiled charges outside the statutory window.
The court affirmed the lower court's quashing of the informations, holding that once the State abandoned prosecution under information #2231, those abandoned charges could not be the basis for amended informations filed after the statute of limitations had expired.
“That prosecution under Information No. 2231, upon which Informations Nos. 2293, 2294 and 2295 are alleged by the State to be based, was, prior to the filing of Informations Nos. 2293, 2294 and 2295, abandoned or discontinued by the State, and cannot be the basis of an amended Information after the expiration of the Statute of Limitation”
The circuit court's key finding that abandoned charges cannot support new informations filed after the statute of limitations expires
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Join FLexlaw to unlock all legal intelligenceO'Neal was originally charged in information #2231 (July 26, 1962) with six counts of embezzlement occurring between July 27, 1960 and July 12, 1961. …
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The State appeals from an order quashing certain informations. The original information #2231 was filed July 26, 1962, encompassing six different counts of embezzlement during the period from July 27, 1960, to July 12, 1961.
Subsequently, a series of informations, a total of twenty, were filed.
On January 3, 1963, informations #2244, #2245, #2246, and #2247 were filed. These informations incorporated separately counts 4, 2, 5 and 3, respectively, of information #2231. These four informations were quashed with leave to amend and then informations #2276, #2277 and #2278 were filed, which incorporated counts 2, 4, and 3, respectively, of the original information #2231.
The appellee-defendant claims that at this point he asked the State what it was *565going to do about counts 1, 5, and 6 of the original information, #2231, and the State Attorney announced to the court that it was abandoning these charges. We do not have this part of the record before us, but the order of the lower court quashing informations #2293, #2294, and #2295, recites:
“This cause came on this day to be heard, pursuant to due notice, upon the defendant’s Motion to Quash and the Amendment thereto, and the Court having heard argument of counsel and being duly advised in the premises, finds:
“That prosecution under Information No. 2231, upon which Informations Nos. 2293, 2294 and 2295 are alleged by the State to be based, was, prior to the filing of Informations Nos. 2293, 2294 and 2295, abandoned or discontinued by the State, and cannot be the basis of an amended Information after the expiration of the Statute of Limitation ; that offenses charged in Informa-tions 2293, 2294 and 2295, having occurred more than two years prior to the filing of said Informations, the same are now barred, and it is thereupon, upon consideration thereof
“ORDERED AND ADJUDGED That the Informations filed against the defendant in the Circuit Court of the Twelfth Judicial Circuit in and for DeSoto County, Florida, in cases Nos. 2293, 2294 and 2295, be, and the same are hereby quashed, and the defendant and the sureties on his appearance bond be, and they are hereby, discharged.
“DONE and ORDERED in Chambers in the City of Arcadia, DeSoto County, Florida, this 8 day of June, 1964.
s/ John D. Justice
Circuit Judge ”
Previous to the filing of the informations #2293, #2294 and #2295, the defendant had been tried on informations '#2285, #2286, and #2287 and had been acquitted by the jury.
Amended informations #2285, #2286 and #2287 had been filed December 3, 1963. The defendant’s counsel alleged that they had discovered that notwithstanding the State’s announcement that it was abandoning the prosecution of the crimes attempted to be charged in Counts 1, 5 and 6 of information numbered 2231 and 2246, which was an amendment of Count 5 of information #2231, the State had filed informations #2293, #2294 and #2295.
In the absence of all the record that was adduced below, we must accept the circuit judge’s statement in the order quashing informations #2293, #2294 and #2295 that the State had abandoned or discontinued the informations as charged by the defense. Therefore, we affirm the lower court.
Affirmed.
ALLEN, Acting C. J., ANDREWS, J., and STURGIS, WALLACE, Associate Judge, concur.
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Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)…ation based upon the timely filed and still-effective affidavit of December 9,1977. Compare Wilcox v. State, 248 So. 2d 692 (Fla. 4th DCA 1971) (prior information vitiated by filing of amended information restating alleged offense); State v. O’Neal, 174 So. 2d 564 (Fla. 2d DCA 1965) (prosecution under original information formally discontinued). Since there is ample evidence that Jess in fact committed the misnamed “technical” violations, the revocation may be supported on that basis alone. Page v. State, 3…
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State v. Piehl, 184 So. 2d 417 (Fla. 1966)…CALDWELL, Justice. This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, First District,1 asserted to be in conflict with State v. O’Neal, 174 So. 2d 564, 565 (Fla.App.2d 1965), Atlantic Coast Line Railroad Co. v. Baynard, 112 Fla. 544, 151 So. 5 (1933) and Jones v. State, 44 Fla. 74, 32 So. 793, 794 (Fla.1902). Respondent pleaded guilty to, and was convicted of, assault with intent to commit murder…
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State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972)…a finding that the prosecution of the cases was abandoned. We think that a determination of the trial judge’s right to take the action that he did is necessary to a consideration of the case. The appellees have cited State v. O’Neal, Fla.App.1965, 174 So. 2d 564, to support the conclusion that a trial judge in a criminal prosecution has an inherent power to declare that the prosecution has failed to go forward with a cause and therefore can dismiss the information. In that case, the appellate court affirmed…
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