Schoenholtz v. State

220 So. 2d 441, 1969 Fla. App. LEXIS 6062

• Court: District Court of Appeal of Florida
• Decided: March 18, 1969
• Docket: No. 68-920
• Status: Published

Opinion

SWANN, Judge.

Defendant below, William Schoenholtz, appeals from his adjudication of guilt on the charge of issuing a worthless check over $50.00 and obtaining services, goods, wares or other things of value.

The defendant moved to quash the information in the trial court and the court reserved ruling upon the motion. The defendant later withdrew his guilty plea and tendered a plea of nolo contendere, which plea was accepted by the court. He was adjudicated guilty and sentenced to the state penitentiary for a term of one year. He has appealed from his judgment of conviction and sentence.

The sole claim which the defendant submits as reversible error by this appeal involves the sufficiency of the accusatory writ. This is generally permissible under a plea of nolo contendere. See Peel v. State, Fla.App.1963, 150 So.2d 281.

Notwithstanding this, the record shows that in the instant case the defendant failed to obtain a ruling by the trial court on his motion to quash the information and, therefore, waived any alleged defects in the information. Generally, defects in an information which are not ruled upon by the trial court cannot be raised for the first time on appeal. See Fla.Stat. § 909.06, F.S.A. and Nelson v. State, Fla.1956, 85 So.2d 832.

Assuming arguendo, that defendant’s point concerning the alleged deficiency of accusatory writ might constitute fundamental or jurisdictional error, we, nevertheless, find that this point is controlled by the decision of Benitez v. State, Fla.App. 1965, 172 So.2d 520. See also Gurr v. State, 150 Fla. 65, 7 So.2d 590 (1942); Butler v. Perry, 67 Fla. 405, 66 So. 150 (1914); Ferrell v. State, 45 Fla. 26, 34 So. 220 (1903); and Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890).

The judgment and sentence herein appealed are, therefore, affirmed.