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Shafer v. State

District Court of Appeal of Florida, Fifth District
Aug 1, 1991
583 So. 2d 417 (Fla. Dist. Ct. App. 1991)
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Summary

In Shafer v. State, 583 So.2d 417 (Fla. 5th DCA 1991), a panel of this court reversed a felony DUI judgment and sentence as required by State v. Rodriguez, for the reason that the information failed to allege the three or more DUI convictions that are an essential element of the substantive offense of felony DUI and, therefore, failed to invoke the jurisdiction of the circuit court, which has jurisdiction over the trial of a felony DUI charge but not jurisdiction over a misdemeanor DUI, the trial of which is in the county court.

Summary of this case from Hope v. State
See 4 Summaries

Opinion

No. 90-1818.

August 1, 1991.

Appeal from the Circuit Court, Putnam County, Peter T. Miller, Acting J.

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Judy Taylor Rush, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

John M. Shafer appeals his conviction for "felony DUI." We vacate the judgment and sentence on the authority of State v. Rodriguez, 575 So.2d 1262 (Fla. 1991), for the reason that the Florida Supreme Court has concluded that the state must allege the specific prior DUI convictions in the information, allegations which are absent from the instant case. Rodriguez also requires protection of the defendant's presumption of innocence "by withholding from the jury any allegations or facts about the alleged prior DUI offenses." 575 So.2d at 1266. We recognize, however, that the jurors might understand that the charge is a felony DUI, merely because the matter is before the circuit court, not the county court.

The defendant's attorney in the instant case specifically objected to the inclusion in the instructions to the jury that his client was charged with a felony DUI. Consistent with the requirements of Rodriguez, we vacate the judgment and sentence imposed. Since, unlike Rodriguez, the record contains sufficient evidence of the prior DUIs, we remand to the trial court for a new trial on the felony DUI charge. See Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987).

Judgment and sentence VACATED; REMANDED for new trial.

W. SHARP, PETERSON and GRIFFIN, JJ., concur.

Summaries of

Shafer v. State

District Court of Appeal of Florida, Fifth District
Aug 1, 1991
583 So. 2d 417 (Fla. Dist. Ct. App. 1991)

In Shafer v. State, 583 So.2d 417 (Fla. 5th DCA 1991), a panel of this court reversed a felony DUI judgment and sentence as required by State v. Rodriguez, for the reason that the information failed to allege the three or more DUI convictions that are an essential element of the substantive offense of felony DUI and, therefore, failed to invoke the jurisdiction of the circuit court, which has jurisdiction over the trial of a felony DUI charge but not jurisdiction over a misdemeanor DUI, the trial of which is in the county court.

Summary of this case from Hope v. State

In Shafer, as in Rodriguez, the state never filed any notice identifying the prior DUI's. There is no indication in the record in Shafer that defense counsel even knew which prior convictions the state intended to rely on until shortly before the trial.

Summary of this case from Hope v. State

In Shafer, the defendant did not attack the sufficiency of the information by motion to dismiss as required by Florida Rule of Criminal Procedure 3.190(b).

Summary of this case from Hope v. State

In Shafer, the state's only proof of the prior DUI's was the defendant's driving record, and based on defense inquiries made within the week before trial, jurisdiction was challenged (unsuccessfully) on the basis that one of the DUI convictions relied upon was invalid.

Summary of this case from Hope v. State
Case details for

Shafer v. State

Case Details

Full title:JOHN M. SHAFER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Aug 1, 1991

Citations

583 So. 2d 417 (Fla. Dist. Ct. App. 1991)

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