Opinion
No. 34881.
July 6, 1966.
Appeal from the Criminal Court of Record for Dade County, Jack M. Turner, J.
Earl Faircloth, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., Richard E. Gerstein, State's Atty., and Joseph Durant and Roy S. Wood, Asst. State's Attys., for appellant.
Max B. Kogen, Miami, for appellee.
Donald Feldman, Miami, amicus curiae.
The basic question involved in this motion to dismiss the State's appeal taken pursuant to the provisions of F.S. Section 924.07, F.S.A., is whether the order of September 3rd, 1965, the pertinent portions of which read as follows, viz.:
"THIS CAUSE having come on for hearing upon the Defendant's Motion to Quash the Information, and the Court having heard arguments of respective counsel for the Defendant and the State, * * *, it is thereupon
"CONSIDERED and ORDERED that the Defendant's Motion to Quash be, and the same is hereby, granted."
is an appealable order under the foregoing statute. The State takes the position that the order is not appealable because it merely sustains the motion to quash and does not, in fact, quash the information. It is conceded by the parties that if the above order is an appealable order under the statute above, the notice of appeal herein was filed too late to vest jurisdiction in this Court.
We hold the order is appealable under the provisions of Section 924.07. This conclusion is inescapable when Section 924.07 is considered alongside Section 909.05 which provides:
"If the motion to quash is sustained the court may order that another information be filed * * *. If such order is not made * * * the defendant, if in custody, shall be discharged therefrom, unless he is in custody on some other charge; if he has been released on bail he and his sureties are exonerated, and if money or bonds have been deposited as bail such money or bonds shall be refunded."
The subsequent orders purporting to amend the original order of September 3rd were nullities, the trial court having lost jurisdiction of the cause.
The motion to dismiss is granted.
ROBERTS, DREW, CALDWELL and ERVIN, JJ., concur.
THORNAL, C.J., agrees to conclusion.