final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County, Lower Tribunal
No. 05-39150 Jose Fernandez, Judge.
Wilson, in proper person.
Moody, Attorney General, for appellee.
HENDON, MILLER, and LOBREE, JJ.
Wilson appeals from the trial court's denial of his
petition for writ of habeas corpus filed pursuant to Florida
Rule of Criminal Procedure 3.850(m). We affirm.
appeal, the defendant seeks to reverse his 2008 conviction
for armed robbery and to gain immediate release from
incarceration, arguing that the trial court committed
fundamental error by convicting him of an uncharged crime.
Wilson asserts that the information charging him with one
count of robbery with a firearm did not specifically state
that the property he took was money. Thus, he argues, when he was
convicted of robbery for "taking money," he was
convicted of an uncharged crime because he was only charged
with "taking property."
information to sufficiently charge a crime, it must follow
the statute,  clearly charge each of the essential
elements, and sufficiently advise the accused of the specific
crime with which he is charged. See Rosin v.
Anderson, 21 So.2d 143, 144 (Fla. 1945). A charging
document that substantially but imperfectly charges a crime
is not fundamentally deficient. Such imperfections should
therefore be deemed harmless when not attacked by motion to
dismiss. Green v. State, 414 So.2d 1171 (Fla. 5th
DCA 1982). More importantly, if a defendant does not timely
and properly raise his objections to the information by a
motion to quash before or at the time he pleads, he is deemed
to have waived them. Shifrin v. State, 210 So.2d 18,
20 (Fla. 3d DCA 1968). As the Court in McMillan v.
State, 832 So.2d 946, 947-48 (Fla. 5th DCA 2002),
Where a defendant waits until after the State rests its case
to challenge the propriety of an indictment, the defendant is
required to show not that the indictment is technically
defective but that it is so fundamentally defective that it
cannot support a judgment of conviction. This rule is
designed to discourage defendants from waiting until after a
trial is over before contesting deficiencies in charging
documents which could have easily been corrected if they had
been pointed out before trial. Where the charging document is
merely imperfect or imprecise, the failure to challenge it by
motion to dismiss waives defect. . . . The overriding concern
is whether the defendant had sufficient notice of the crimes
for which he is being tried.
(internal citations omitted). By failing to challenge the
information in the proceedings below, Wilson waived his right
to do so on appeal. See Gaskin v. State, 420 So.2d
366, 367 (Fla. 1st DCA 1982).
argues that because the information wholly fails to allege
that he "took money," it is fundamentally
defective, and the conviction arising from that fundamentally
defective information is manifestly unjust. We disagree.
Where an information totally omits an essential element of
the crime, or is so vague, indistinct or indefinite that the
defendant is misled or exposed to double jeopardy, it is
fundamentally defective. Fla. R. Crim. P. 3.140;
McMillan, 832 So.2d at 948. The determinative
question is whether the information charged every element of
the offense of robbery, and whether Wilson was misled. There
is nothing in the record showing that Wilson was misled as to
what he was charged with or that he was prejudiced in the
preparation of his defense. At trial, Wilson did not claim
the information was defective, nor did he file a motion to
dismiss under Florida Rules of Criminal Procedure. There is
nothing in the record that shows actual prejudice to the
fairness of Wilson's trial. We find that the information
did not wholly fail to allege the elements of the offense,
and sufficiently notified Wilson that he was charged with
committing a robbery at gunpoint.
record on appeal further provides that Wilson was fully
apprised of the charges against him. The record shows that
the jury was presented with competent and substantial
evidence that the defendant committed the crime that he was
convicted of. The victim was deposed pretrial, and during the
trial, the victim testified that the defendant took money
from him at gunpoint. The defendant's argument that he
was unaware of the specific charges he faced is without
no prejudice to the fairness of Wilson's trial and no
fundamental error on this record. See Price v.
State, 995 So.2d 401, 404 (Fla. 2008). Finally, there is
no ineffective assistance of counsel for failing to raise
this issue, as counsel ...