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State v. Thomas

District Court of Appeal of Florida, Fifth District
Jul 24, 1998
714 So. 2d 626 (Fla. Dist. Ct. App. 1998)

Summary

holding that filing an amended information after the jury is sworn has the legal effect of a nolle prosequi of the original information

Summary of this case from Clements v. State

Opinion

No. 97-1173

July 24, 1998

Appeal from the Circuit Court for Osceola County, Margaret T. Waller, Acting Circuit Judge.

Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.

James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellee.


ON MOTION FOR CLARIFICATION


On motion for clarification we substitute the following opinion.

The State charged Thomas in a three count information with false imprisonment and two counts of misdemeanor battery. After the jury was sworn, the State amended its information changing the false imprisonment charge to kidnapping with the intent to inflict bodily harm or terrorize. On motion by the defense, the court dismissed the amended complaint because of double jeopardy. The State appeals; we affirm.

We agree with State v. Stell, 407 So.2d 642 (Fla. 4th DCA 1981) and our earlier decision in State v. Belton, 468 So.2d 495 (Fla. 5th DCA 1985) that the filing of an amended information, at least after the jury is sworn, has the legal effect of a nolle prosequi of the original information. It would be inconsistent with the principles of double jeopardy if, after the defendant is placed in jeopardy for one crime, we permitted the State to amend the information to substitute another. The jury having been sworn before the filing of the amended information herein, jeopardy had attached.

Our decision in State v. Calle, 560 So.2d 355 (Fla. 5th DCA 1990) did not address this issue. Further, we do not here suggest that an amendment to correct a minor error that does not substantively prejudice the defendant will be barred by double jeopardy. See Sanders v. State, 669 So.2d 356 (Fla. 5th DCA 1996).

AFFIRMED.

GOSHORN and PETERSON, JJ., concur.


Summaries of

State v. Thomas

District Court of Appeal of Florida, Fifth District
Jul 24, 1998
714 So. 2d 626 (Fla. Dist. Ct. App. 1998)

holding that filing an amended information after the jury is sworn has the legal effect of a nolle prosequi of the original information

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

State v. Thomas

Case Details

Full title:STATE OF FLORIDA, Appellant, v. RAYMOND G. THOMAS, Appellee

Court:District Court of Appeal of Florida, Fifth District

Date published: Jul 24, 1998

Citations

714 So. 2d 626 (Fla. Dist. Ct. App. 1998)

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