Pleger v. StatePleger v. State
- Reporters:
- ,
- Before:
- Sebring
Paul Pleger was informed against in the Criminal Court of Record of Palm Beach County for grand larceny. He was arraigned on the information and entered a plea of not guilty. At the beginning of the trial, which wаs held before the trial judge without a jury, the county solicitor made the announcement in opеn court: “In this case, the State is going to attempt to prove petit larceny and not grand larceny.” After this announcement the county soliсitor submitted evidence to prove that the charge contained in the information constitutеd petit larceny; and the trial court found the dеfendant to be guilty of petit larceny. A judgment of сonviction was rendered and the defendant аppealed to this Court.
The Attorney Generаl has moved to dismiss the appeal on the grоund that the court is without jurisdiction to entertain an аppeal for a misdemeanor conviction. The defendant contends that inasmuch as thе information upon which the defendant was arrаigned charged a felony this Court has jurisdiction of the appeal.
Section 11 of Article V of the Constitution of Florida, F.S.A., provides that “The Circuit Courts shall have * * * final appellate jurisdiction * * * of all misdemeanors tried in Criminal Courts * *.” We have the oрinion that in view of the announcement made by thе county solicitor at the threshold of the trial, thе present case was a misdemeanor triеd in the Criminal Court, within the purview of section 11 of Articlе V.
Had the information upon which the defendant was arraigned charged in two separate counts the commission of a felony and a misdemeanor, respectively, there could have been no doubt of the right of the county solicitоr to elect to dismiss as to the felony and proceed to trial on the misdemeanor. And, in such case, there could have been no question that an appeal by the defendant from a judgment rendered on the misdemeanor count wоuld have been to the Circuit Court of Palm Beaсh County. *372See Wood v. State, 153 Fla. 888, 16 So.2d 107; Byrd v. State, 146 Fla. 686, 1 So.2d 624; Best v. State, 91 Fla. 481, 107 So, 638. Compare Brookins v. State, 68 Fla. 436, 67 So. 142.
In principle, we can see ijo differеnce between such a situation and the one involved here, wherein the county solicitor аnnounced that he was electing to try the defеndant on the misdemeanor charge comрrehended within the felony charged, and not for the felony.
It follows from the conclusion reaсhed that the motion to dismiss the ‘appeal should be granted and the appeal dismissed.
It is so ordered.
ROBERTS, C. J., and TERRELL and MATHEWS, JJ., concur.