MM00-00405-XX - Inclema v. State

IN THE CIRCUIT COURT OF
THE TENTH JUDICIAL CIRCUIT
FOR HARDEE, HIGHLANDS, AND

POLK COUNTY, FLORIDA

APPEAL NO.: DD-2

COUNTY CASE NO.: MM00-00405-XX

CHARLES INCLEMA,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

________________________

ORDER OF THE COURT

This is an appeal from the county court of Polk County, Judge Karla Wright presiding. Appellant, Charles Inclema, by and through appellate counsel, appeals the judgment and sentence below. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is REVERSED in part and AFFIRMED in part.

The appellant was charged by a uniform traffic citation in case No. TT00-000226-LD with the offense of Driving Under the Influence on January 18, 2000, in violation of '.893.13, Florida Statute (1999); and by an arrest report in case number MM00-00405-XX with two offenses which occurred on January 18, 2000: APossession of Marijuana under 20 grams@ in violation of ' 893.13, Fla. Stat. (1999); and APossession of Narcotic Paraphernalia,@ in violation of ' 893.147, Fla. Stat. (1999), both first degree misdemeanors.

Mr. Inclema waived his right to a jury trial and entered a plea of no contest as to both cases on April 6, 2000, before the Honorable Stephen L. Selph. As to the charge of driving under the influence, Mr. Inclema was adjudicated guilty and placed on twelve months probation. As to the charges of possession of marijuana and narcotic paraphernalia, Mr. Inclema was adjudicated guilty of the paraphernalia charge but adjudication was withheld on the possession charge. He was placed on two concurrent twelve month terms of probation which were also to be served concurrently with the probation in the driving under the influence case.

A violation of probation affidavit was signed on July 18, 2000, and filed on July 19, 2000. On November 28, 2000, appellant appeared before the Honorable Karla Wright, for a hearing on the allegations of violation of probation. The trial court found appellant in violation of his probation. No written order of violation of probation was issued. The trial court imposed a sentence of 90 days incarceration in TT-000226-LD. The court charged costs of $1228, as a AD6" against his driver=s license. In MM00-0405A-XX, the trial court imposed sentence of 90 days for each count, to run concurrently with each other and with TT00-000226-LD. A fine of $292 was reduced to judgment and appellant=s driver=s license was revoked for two years. He was also adjudicated on the charge of possession. Appellant filed a timely notice of appeal on December 22, 2000.

The appellant raises two issues on appeal: (1)that the appellant should be discharged as to possession of marijuana charge and possession of narcotic paraphernalia charge, because there was no charging document conferring jurisdiction upon the trial court; and (2) that appellant=s probation was improperly revoked where the prosecution failed to meet its burden of proving that the appellant had an ability to pay where all of the violations alleged were financial. This court finds merit in the appellant=s first argument, that he should be discharged because the trial court did not have jurisdiction. The court affirms as to the second argument, without discussion.

II.

Appellant contends that the trial court did not have jurisdiction because no information or notice to appear was ever filed; only an arrest report/affidavit. The appellant relies on Florida Statute ' 3.140 (2000) and Mallard v. State, 699 So.2d 797 (Fla. 4^th DCA 1997) in support of his argument. The appellee disagrees, arguing that the charging document in this case was a valid arrest affidavit which stated the date, time, and location of the charges, the name and personal information of the accused, and the alleged facts. The appellee cites to Florida Statute ' 34.13(1) (2000) as support for the argument that the arrest affidavit was an acceptable method of prosecution.

A review of the applicable law leads this court to conclude that the filing of an arrest report/affidavit is not sufficient to confer jurisdiction to the trial court. As argued by the appellant, Florida Rule of Criminal Procedure ' 3.140(a) provides for the methods of prosecution in county court:

In circuit courts and county courts, prosecution shall be solely by indictment or information, except that prosecution in county courts for violations of municipal ordinances and metropolitan county ordinances may be affidavit or docket entries and prosecution for misdemeanors, municipal ordinances, and county ordinances, may be by notice to appear issued and served pursuant to rule 3.125.

In Mallard, appellant was arrested for various offenses all stemming from his attempted flight from police in a stolen vehicle. A two count information was subsequently filed charging the appellant with grand theft of a motor vehicle and obstructing an officer without violence. However, the trial court also tried the appellant on a third count of fleeing or attempting to elude a police officer. Although the charge was not included in the information, the trial court decided that its inclusion on a police form, captioned AArrest/Notice to Appear/Juvenile Referral Report,@ was sufficient. The Fourth District reversed and concluded that:

The document is not a sufficient notice to appear where as here, the police plainly did not use it as such where it fails to convey to the defendant the information necessary to answer the charges against him . . .Therefore, in the absence of document formally charging appellant . . .the trial court was without jurisdiction to try appellant on this charge.

Mallard at 798. The Mallard court went on to quote the Second District in Caves v. State, 303 So.2d 658, 659 (Fla. 2d DCA 1974):

A criminal prosecution presupposes the existence of a valid accusation charging a crime against the defendant. Such an accusation in some form is an essential requisite of jurisdiction which cannot be waived.

Mallard at 798. In this case, as in Mallard, all that was filed was a multi purpose document to be filled in by a police officer following an arrest. It includes three separate boxes which are to be checked off by the officer if applicable; Notice to Appear; Complaint Affidavit; and Arrest Report. Here, the officer checked off AArrest Report.@ (R2) Although a notice to appear may serve as a charging document for a misdemeanor, the ANotice to Appear@ section of the form in this case, as in Mallard, was left completely blank.

The appellee contends that a prosecution can be commenced by an arrest affidavit filed by a law enforcement officer. In support of this position, the appellee relies on Florida Statute ' 34.13(1) which provides:

All persons tried in the county court on any criminal charge shall be tried upon indictment by the grand jury, upon information filed by the prosecuting attorney, or upon affidavit or complaint.

However, as argued by the appellant, after further reading of that section, it appears that the affidavits referred to in that rule are those in support of arrest warrants; not arrest affidavits. Florida Statute '34.13(3) provides:

The state attorney is authorized to sign affidavits before the judge of the county court when the state attorney has evidence to support such affidavit for a criminal charge over which such court has jurisdiction. The judge shall issue arrest warrants upon such affidavits as is done in all other cases. . . .

In addition, Florida Statute ' 34.13(4) provides

Upon complaint made on affidavit to any county court that any misdemeanor has been committed, the county court judge may issue a warrant . . .

Thus, in the absence of any statute or case law which specifically authorizes prosecution by an arrest report/affidavit, this court has no alternative but to reverse and remand this cause to the trial court to discharge the appellant for the misdemeanor offenses of possession of cannabis and possession of narcotics paraphernalia.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ORDERED this day of January 2002.

Charles B. Curry, Chief Judge