Opinion
No. 5300.
April 30, 1965.
Appeal from the Circuit Court, DeSoto County, John D. Justice, J.
John H. Treadwell, III, Asst. State Atty., Arcadia, for appellant.
William Lamar Rose, Fort Myers, and Lewis E. Purvis, Arcadia, for appellee.
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 going 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 Informations 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.