351 So. 2d 740 | Fla. Dist. Ct. App. | 1977
Appealing from conviction of conspiracy to sell a controlled substance and sale and delivery of a controlled substance, the defendant-appellant presents two points. In one, appellant contends the court committed error by permitting an assigned state attorney through his assistant to prosecute the defendant when the period of assignment had expired. Secondly, appellant contends the court erred in denying his motion to dismiss the information as amended for insufficiency and for the asserted ground that the assistant state attorney who signed the information was not legally qualified to do so. Those contentions have been considered in the light of the record, briefs and argument, and we hold that no reversible error has been shown.
Regarding the first contention, there were extensions, made by the Supreme Court, of the Executive Order by which the State Attorney for the Eleventh Judicial Circuit had been assigned to prosecute this and other interrelated cases in the Sixteenth Judicial Circuit. The fact that there was a gap of approximately one week between the end of one extension period and the time of the further extension by the Supreme Court did not operate to vitiate the prosecution, or the proceedings thereon which took place in the interval. In re Executive Assignment of State Attorney, 298 So.2d 382 (Fla.1974); Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975). There was no timely challenge of the authority or power of the state attorney then conducting the prosecution, to so proceed. Such challenge, if made, would need to have been presented by quo warranto. Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Carey v. State, 349 So.2d 820 (Fla.3d DCA 1977, opinion filed September 13, 1977).
As to the appellant’s second point, it was shown that the assistant state attorney, who was of the Eleventh Judicial Circuit, who signed the information had been sworn as an assistant state attorney for the Sixteenth Judicial Circuit in the matters, of which this was one, for the prosecution of which the State Attorney of the Eleventh Judicial Circuit was assigned and directed to conduct such prosecution, by Executive Order. Denial of defendant’s motion to dismiss the information as amended was not error.
Affirmed.