Stanfill v. State, 384 So. 2d 141 (Fla. 1980). · Go Syfert
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Stanfill v. State, 384 So. 2d 141 (Fla. 1980). Cases Citing This Book View Copy Cite
“the decisions of the district courts of appeal represent the law of florida unless and until they are overruled by this court.”
69 citation events (44 in the last 25 years) across 10 distinct courts.
Strongest positive: STATE OF FLORIDA v. LYONS (fladistctapp, 2024-08-09) · Strongest negative: Don's Sod Co., Inc. v. Dept. of Revenue (fladistctapp, 1995-10-13)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 40 distinct citers. How cited ↗
discussed Overruled Don's Sod Co., Inc. v. Dept. of Revenue
Fla. Dist. Ct. App. · 1995 · signal: see also · confidence high
See also, Stanfill v. State, 384 So.2d 141 (Fla. 1980) (Florida District Court of Appeal decisions represent Florida law unless overruled by Florida Supreme Court). [4] Art.
discussed Overruled In Re EBL
Fla. Dist. Ct. App. · 1989 · signal: see also · confidence high
See also Stanfill v. State, 384 So.2d 141 (Fla. 1980) (decision of district courts of appeal represent law of Florida unless and until overruled by the supreme court).
cited Overruled In re E.B.L.
Fla. Dist. Ct. App. · 1989 · signal: see also · confidence high
See also Stanfill v. State, 384 So.2d 141 (Fla.1980) (decision of district courts of appeal represent law of Florida unless and until overruled by the supreme court).
discussed Overruled Ago
Fla. Att'y Gen. · 1983 · signal: see · confidence high
See generally , Stanfill v. State, 384 So.2d 141 (Fla. 1980) (decisions of district courts of appeal represent the law of Florida unless and until overruled by State Supreme Court); Johns v. Wainwright, 253 So.2d 873 (Fla. 1971); State v. Hayes, 333 So.2d 51 (4 D.C.A.
discussed Cited as authority (rule) STATE OF FLORIDA v. LYONS
Fla. Dist. Ct. App. · 2024 · confidence medium
Because Victorino II had issued at the time the trial court in our case rendered its decision and we readily agree with its conclusion, as well as that of Lobato, we need not 6 clear: "[T]he amendment to section 921.141 is a quintessentially procedural change that has no substantive effect. . . . '[I]t does not constitute an ex post facto law.' " Victorino II, 372 So. 3d at 778 (quoting Victorino I, 241 So. 3d at 50 ).5 "The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled . . . ." Dep't of Highway Safety & Motor Vehicles v. Chakrin, 3…
cited Cited as authority (rule) Pringle v. Secretary, Department of Corrections (Duval County)
M.D. Fla. · 2021 · confidence medium
Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980).
discussed Cited as authority (rule) Convergent Technologies, Inc. v. Jasper Stone, Kurt A. Bernard, Paul R. Hutchinson, and Michael D. Fleming
Fla. Dist. Ct. App. · 2018 · confidence medium
Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (holding that “‘[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court,’” quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980)).
discussed Cited as authority (rule) Convergent Technologies, Inc. v. Jasper Stone, Kurt A. Bernard, Paul R. Hutchinson, and Michael D. Fleming
Fla. Dist. Ct. App. · 2018 · confidence medium
Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (holding that “‘[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court,’” quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980)).
discussed Cited as authority (rule) Robert Burton v. State
Fla. Dist. Ct. App. · 2016 · confidence medium
The Florida Supreme Court has provided some guidance in holding that decisions from district courts of appeal “represent the law of Florida unless and until they are overruled by [the Florida', Supreme Court].” Pardo v. State, 596 So.2d 665, 666 (Fla. *546 1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)).
discussed Cited as authority (rule) State of Florida v. Zachariah Dorsett
Fla. · 2015 · confidence medium
In that case, we rejected the contention that section 316.027 created two offenses — the misdemeanor of unlawfully leaving the scene and the felony of willfully leaving the scene— and held the statute “creates only the felony of ‘willfully’ leaving the scene of an accident.” 384 So.2d at 141-42, 143 .
cited Cited as authority (rule) Cahours v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
Stanfill v. State, 384 So.2d 141,143 (Fla.1980).
discussed Cited as authority (rule) Doe v. St. John's Episcopal Parish Day School, Inc.
M.D. Fla. · 2014 · confidence medium
Indeed, the Florida Supreme Court has held that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme Court].” Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)); see also McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir.2002).
discussed Cited as authority (rule) Union Carbide Corp. v. Aubin
Fla. Dist. Ct. App. · 2012 · confidence medium
Aubin contends that Kohler and the Third Restatement do not control here because “Florida’s Supreme Court has not adopted the Third Restatement, and, unless and until it does so, the Third Restatement is not the law in this State.” We disagree with the rationale shared by the trial court and Aubin, as “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme] Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).
discussed Cited as authority (rule) State v. Washington
Fla. Dist. Ct. App. · 2012 · confidence medium
As the Florida Supreme Court has repeatedly articulated, “[t]he decision of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).
discussed Cited as authority (rule) American Wall Systems v. Madison Intern.
Fla. · 2006 · confidence medium
But as we have acknowledged, "[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court. " Stanfill v. State, 384 So.2d 141, 143 (Fla.1980) (emphasis added).
discussed Cited as authority (rule) PROGRESSIVE EXP. INS. CO. v. Devitis
Fla. Dist. Ct. App. · 2006 · confidence medium
Pardo v. State, 596 So.2d 665 (Fla.1992), holds that in the absence of conflicting decisions, a decision of the district court of appeal is binding on all Florida trial courts, quoting Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980) as follows: The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.
discussed Cited as authority (rule) State v. Barnum
Fla. · 2006 · confidence medium
See Jenkins v. State, 385 So.2d 1356, 1359 (Fla.1980); Stanfill v. State, 384 So.2d 141, 143 (Fla.1980) ("The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court...."). [8] Moreover, *523 in the absence of interdistrict conflict, decisions of the district courts represent the law of the state, binding all Florida trial courts.
discussed Cited as authority (rule) Bunkley v. State
Fla. · 2004 · confidence medium
The district courts of appeal are, in most instances, courts of last resort, Johns v. Wainwright, 253 So.2d 873 (Fla.1971), and the "decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court." Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).
discussed Cited as authority (rule) Betts v. Advance America
M.D. Fla. · 2003 · confidence medium
The Florida Supreme Court has opined that “ ‘the decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.’ ” Pardo v. State of Florida, 596 So.2d 665, 666 (Fla. 1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)).
discussed Cited as authority (rule) Walker v. Bozeman
N.D. Fla. · 2003 · confidence medium
That rule is, if anything, particularly appropriate in Florida, where the state’s highest court has held that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme Court].” Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)).
examined Cited as authority (rule) State v. Klayman (4×) also: Cited "see"
Fla. · 2002 · confidence medium
The district courts of appeal are, in most instances, courts of last resort, Johns v. Wainwright, 253 So.2d 873 (Fla.1971), and the "decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court." Stanfill v. State, 384 So.2d 141, 143 (Fla.1980). *257 The decision of the First District Court of Appeal in Palmer was not a case of first impression, see Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980) (approving consecutive mandatory minimum three year sentences for robbery and kidnapping in spite of the defendant's claim that both offen…
discussed Cited as authority (rule) McMahan v. Toto
11th Cir. · 2002 · confidence medium
That rule is, if anything, particularly appropriate in Florida, where the state’s highest court has held that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme Court].” Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)).
discussed Cited as authority (rule) D. Bruce McMahan Nemesis Veritas, F.K.A., McMahan & Company v. William A. Toto, D. Bruce McMahan Nemesis Veritas, F.K.A. McMahan & Company, Plaintiffs-Appellants-Cross-Appellees v. William A. Toto, Defendant-Appellee-Cross-Appellant
11th Cir. · 2002 · confidence medium
That rule is, if anything, particularly appropriate in Florida, where the state's highest court has held that "[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme Court]." Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)). 4 There is no persuasive indication that the Florida Supreme Court would not follow the Fourth District Court of Appeal's BDO Seidman decision on whether its offer of judgment statute, Fla. Stat. § 768.79 , applies when the case is gov…
discussed Cited as authority (rule) D. Bruce McMahan v. William A. Toto
11th Cir. · 2001 · confidence medium
That rule is, if anything, particularly appropriate in Florida, 3 where the state’s highest court has held that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme Court].” Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980)).
discussed Cited as authority (rule) Special's Trading v. Intern. Consumer
Fla. Dist. Ct. App. · 1996 · confidence medium
This Court has stated that `[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.' Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).
cited Cited as authority (rule) State v. Mancuso
Fla. · 1995 · confidence medium
Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980).
discussed Cited as authority (rule) Pardo v. State
Fla. · 1992 · confidence medium
This Court has stated that "[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court." Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980).
cited Cited as authority (rule) Commonwealth v. Norman
Mass. App. Ct. · 1989 · confidence medium
Ct. App. 1974), overruled on other grounds, Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980) (whether first proceeding was criminal).
cited Cited as authority (rule) Weiman v. McHaffie
Fla. · 1985 · confidence medium
District court decisions "represent the law of Florida unless and until they are overruled by this Court." Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980).
cited Cited as authority (rule) State v. Quesada
Fla. Cir. Ct. · 1982 · confidence medium
Stanhill v. State, 384 So.2d 141, 143 (Fla. 1980).
discussed Cited "see" Daniel Varone v. Publix Super Markets, Inc.
Fla. Dist. Ct. App. · 2026 · signal: see · confidence high
See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (“[T]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980))); Fox v. Fox, 262 So. 3d 789, 792 (Fla. 4th DCA 2018) (reviewing en banc because “[a] panel of our court has no authority to overrule or recede from our precedent on the same legal issue”).
discussed Cited "see" James Guzman v. State of Florida – Corrected Opinion
Fla. · 2018 · signal: see · confidence high
See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (“The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980))); Farina v. State, 680 So. 2d 392, 395 (Fla. 1996) (“[D]isqualification is proper only if specific prejudice can be demonstrated.”). - 10 - discretion when deciding whether to grant or deny a challenge for cause based on juror competency.” Conde v. State, 860 So. 2d 930, 939 (Fla. 2003).
discussed Cited "see" James Guzman v. State of Florida
Fla. · 2018 · signal: see · confidence high
See Pardo v. State , 596 So.2d 665 , 666 (Fla. 1992) ("The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court." (quoting Stanfill v. State , 384 So.2d 141 , 143 (Fla. 1980) ) ); Farina v. State , 680 So.2d 392 , 395 (Fla. 1996) ("[D]isqualification is proper only if specific prejudice can be demonstrated."). 5 As we explained in Morris v. State , 219 So.3d 33 , 41 (Fla. 2017) : The denial of a motion to strike the jury panel is reviewed for abuse of discretion.
discussed Cited "see" Massie v. PROGRESSIVE EXPRESS INSURANCE COMPANY
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Stanfill v. State, 384 So.2d 141, 143 (Fla.1980); see Kaklamanos, 796 So.2d at 557 , (stating a “departure from the essential requirements of law” occurs when a lower court fails to fulfill its constitutional duty to apply a correct principle of law to the admitted facts).
discussed Cited "see" Wyche v. State
Fla. · 2008 · signal: see · confidence high
See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (noting that "[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court" and concluding that "in the absence of interdistrict conflict, district court decisions bind all Florida trial courts" (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980), and citing Weiman v. McHaffie, 470 So.2d 682, 684 (Fla. 1985))). [10] In Escobar v. State, 699 So.2d 988 (Fla. 1997), abrogated on different grounds, Connor v. State, 803 So.2d 598 (Fla.2001), we affirmed the trial court's deni…
discussed Cited "see" Ago
Fla. Att'y Gen. · 2001 · signal: see · confidence high
See , Stanfill v. State , 384 So.2d 141 (Fla. 1980); Johns v. Wainwright , 253 So.2d 873 (Fla. 1971) (district courts of appeal were never intended to be intermediate courts; rather decisions of such courts in most cases are final and absolute); Ansin v. Thurston , 101 So.2d 808 (Fla. 1958).
discussed Cited "see" Ago
Fla. Att'y Gen. · 1982 · signal: see · confidence high
See , Stanfill v. State, 384 So.2d 141 (Fla. 1980); Johns v. Wainwright, 253 So.2d 873 (Fla. 1971) (district courts of appeal were never intended to be intermediate courts; rather decisions of such courts in most cases are final and absolute); Ansin v. Thurston, 101 So.2d 808 (Fla. 1958).
discussed Cited "see, e.g." State of Florida v. Michelle Lynn Howard
Fla. Dist. Ct. App. · 2025 · signal: see also · confidence medium
Contrarily, as between District Courts of Appeal, a sister district’s opinion is merely persuasive.” (quoting State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA 1976))); see also State v. Washington, 114 So. 3d 182, 185 (Fla. 3d DCA 2012) (noting while a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty-bound to findings.’” (quoting State v. Thompson, 193 So. 3d 916 , 919–20 (Fla. 2d DCA 2016))). 11 follow it, and the Florida Supreme Court has repeatedly articulated, “[t]he decision of the district courts of appeal represent the…
discussed Cited "see, e.g." Jolley v. SEAMCO LABORATORIES INC.
Fla. Dist. Ct. App. · 2002 · signal: see also · confidence medium
See Pardo v. State, 596 So.2d 665 (Fla.1992); Weiman v. McHaffie, 470 So.2d 682, 684 (Fla.1985); see also Stanfill v. State, 384 So.2d 141, 143 (Fla.1980) ("The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Supreme] Court....").
cited Cited "see, e.g." Dillon v. Chapman
Fla. Dist. Ct. App. · 1981 · signal: see also · confidence low
See also Stanfill v. State, 384 So.2d 141 (Fla. 1980).
Retrieving the full opinion text from the archive…
James Rickey STANFILL, Petitioner,
v.
STATE of Florida, Respondent.
54771.
Supreme Court of Florida.
Apr 3, 1980.
384 So. 2d 141
Sundberg.
Cited by 60 opinions  |  Published

F. Palmer Williams and Everett P. Anderson of Pennington & Wilkinson, Tallahassee, for petitioner.

Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.

SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Stanfill v. State, 360 So.2d 128 (Fla. 1st DCA 1978), holding that section 316.027, Florida Statutes (1975), creates but a single crime, that being the felony of "willfully" leaving the scene of an accident. This decision conflicts with the decisions in State v. Patterson, 284 So.2d 9 (Fla.2d DCA 1973), and Diggs v. State, 334 So.2d 333 (Fla.2d[*142] DCA 1976), which hold that section 316.027 creates two crimes, the misdemeanor of "unlawfully" leaving the scene and the felony of "willfully" leaving. We resolve this conflict by adopting the first district's holding that section 316.027 creates but one crime, a felony. We further hold that the indictment in this case was defective and prevented petitioner from properly preparing his defense.

Petitioner, James Rickey Stanfill, was charged by indictment with one count of manslaughter and three counts of "unlawfully" leaving the scene of an accident involving death or personal injury, in violation of section 316.027, Florida Statutes (1975).[1] At trial, following the impanelling of the jury, Stanfill brought to the court's attention an alleged inconsistency in the state's position. He argued that, although the indictment charged him with "unlawfully" leaving the scene of an accident, a misdemeanor under then existing case law, the state was apparently preparing to try him for "willfully" leaving the scene, a felony.[2] Acknowledging that the indictment charged a crime, Stanfill argued that he could not be tried for the felony of "willfully" leaving the scene because the indictment only charged "unlawful" leaving. Relying on Florida Rules of Criminal Procedure 3.140(o) and 3.190(c),[3] the state responded that Stanfill's attack on the indictment was untimely. Stanfill replied that these rules were inapplicable because the indictment contained a valid charge.

The trial judge, rejecting Stanfill's argument, allowed the state to prosecute for felony violation of section 316.027. Over Stanfill's objection, the trial judge charged the jury that it is a crime for the driver of a vehicle involved in an accident resulting in injury to, or death of, a person to "willfully" fail to stop at the scene of the accident. The trial judge did not instruct the jury that unlawfully leaving the scene of the accident is a lesser included misdemeanor offense provided for in section 316.027. The jury found Stanfill guilty on three counts of "willfully" failing to stop. He was adjudged guilty on one count and sentenced to a term of one year in the state prison. Adjudication was withheld on the other two counts.

[*143] On appeal, the District Court of Appeal, First District, was presented with the question of whether an indictment charging a driver with "unlawfully," as distinguished from "willfully," violating section 316.027, charges a misdemeanor, as Stanfill contended, or whether it defectively charges a felony, and, if it does defectively charge a felony, whether this defect was waived and cured by the application of Florida Rules of Criminal Procedures 3.140(o) and 3.190(c). Receding from its previous decisions in State v. Shepard, 299 So.2d 644 (Fla. 1st DCA 1974), and Holmes v. State, 342 So.2d 134 (Fla. 1st DCA 1977), the first district rejected the "unlawful-willful" distinction and held that section 316.027 creates but a single crime, that being a felony. The district court based its decision on the language contained in two other related statutes, section 775.08(2) and section 316.026(4), which it read in conjunction with section 316.027.[4] The district court reasoned that, in enacting section 316.027, the legislature never intended, by the first two subsections, to create two crimes, a misdemeanor by subsection (1) and a felony in subsection (2), and that the legislature intended to condemn "willful" leaving. The first district affirmed Stanfill's conviction, concluding that the indictment, by using "unlawful," charged defective felonies but that the failure by Stanfill to attack these counts prior to trial, pursuant to Florida Rules of Criminal Procedure 3.140(o) and 3.190(c), constituted a waiver of the defect and cured the indictment.

Stanfill concedes that the district court's construction of section 316.027, as charging but one crime, is correct and that the decisional conflict should be resolved by our adopting this construction. He contends, however, that Florida Rules of Criminal Procedure 3.140(o) and 3.190(c) are not applicable because the indictment is defective in that it fails to allege "willful." The state argues that the district court's construction of section 316.027 is correct, but it maintains that the district court was also correct in holding that the defect was waived and that the indictment was cured pursuant to Florida Rules of Criminal Procedure 3.140(o) and 3.190(c).

The first district's construction of section 316.027 is correct, and we hold that section 316.027 creates only the felony of "willfully" leaving the scene of an accident. When sections 775.08(2) and 316.026(4) are read together with section 316.027, it is obvious that, in enacting section 316.027, the legislature never intended to create a misdemeanor by subsection (1). Accordingly, we approve the first district's construction of section 316.027 and disapprove the decisions in State v. Patterson, State v. Shepard, Diggs v. State, and Holmes v. State to the extent that they hold to the contrary.

But what is the effect of the state's failure to allege a "willful" leaving of the scene? We conclude that the charging document in this case was so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense. See Fla.R.Crim.P. 3.140(o). The indictment alleged that Stanfill "unlawfully" left the scene of an accident. As noted previously, several decisions of the district courts of appeal, including the District Court of Appeal, First District, unequivocally held that use of the term "unlawfully" in an information charged a misdemeanor pursuant to section 316.027(1), while use of the term "willfully" charged a felony pursuant to section 316.027(2). The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court,[5] hence petitioner did not act unreasonably in relying upon them. It follows, then, that petitioner did not waive his right to challenge the indictment under Florida Rules of Criminal Procedure 3.140(o) and 3.190(c).[*144] At the time petitioner was charged with a crime, counts II, through IV, of his indictment contained valid charges of a misdemeanor. It was only at trial that it became apparent that the state was pursuing a felony conviction under section 316.027(2). To hold that petitioner should have challenged his indictment before that time would be tantamount to holding that petitioner should have foreseen our disapproving the district court decisions construing section 316.027. This we will not do.

For these reasons we remand this cause to the District Court of Appeal, First District, with directions that the felony judgment and sentence be vacated, and the cause be further remanded to the trial court to enter a judgment of conviction of a misdemeanor and to impose sentence accordingly. See Diggs v. State, 334 So.2d 333 (Fla.2d DCA 1976).

It is so ordered.

ENGLAND, C.J. and ADKINS and McDONALD, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

ALDERMAN, J., concurs in part and dissents in part with an opinion, with which BOYD, J., concurs.

BOYD, J., dissents.

OVERTON, Justice, concurring in part, dissenting in part.

I concur with the majority holding that section 316.027, Florida Statutes (1975), creates but one offense, a felony. I dissent from the remand to sentence for a misdemeanor that we have just held is nonexistent. I would remand for a new trial for the felony offense as the majority has defined it.

ALDERMAN, Justice, concurring in part, dissenting in part.

I concur with that part of the majority opinion holding that section 316.027, Florida Statutes (1975), creates but a single crime, that being the felony of "willfully" leaving the scene of an accident. I dissent, however, from the paradoxical conclusion of the majority opinion that remands this cause with directions that Stanfill's felony judgment and sentence be vacated and that the trial court enter a judgment of conviction of a misdemeanor and impose sentence accordingly.

How can this Court direct the trial court to adjudge Stanfill guilty of a misdemeanor in violation of section 316.027 and at the same time hold that this section creates but a single crime, a felony. Stanfill is either guilty of a felony, or he is guilty of nothing. He cannot be sentenced for a crime that does not exist.

What is the effect of the State's failure to allege a "willful" leaving of the scene. Stanfill argues that willfulness is an essential element of the crime proscribed by section 316.027 and that failure to allege willfulness rendered the indictment fundamentally defective. I reject this argument. It cannot be said that this indictment wholly fails to charge a violation of section 316.027 because it does allege that Stanfill "unlawfully" left the scene of an accident. The only way under this statute that he could have unlawfully left the scene was to have willfully left the scene. In other words, the allegation of unlawfulness includes an implied allegation of willfulness. The allegation that Stanfill "unlawfully" left the scene of an accident is not so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or to expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Even if the indictment is in some manner technically defective (in my opinion, it is not), any such non-fundamental defect was subject to waiver under Florida Rule of Criminal Procedure 3.190(c), if not raised in a timely motion. Stanfill did not challenge the legal sufficiency of the indictment until after the impanelling of the jury.

Accordingly, I would deny the writ.

BOYD, J., concurs.

1 Section 316.027, Florida Statutes (1975), provides in pertinent part:

(1) The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of the accident, or as close thereto as possible, and shall forthwith return to, and in every event shall remain at the scene of, the accident until he has fulfilled the requirements of s. 316.062.

(2) Any person willfully failing to stop or to comply with the requirements of subsection (1) under such circumstances is guilty of a felony and, upon conviction, shall be punished by imprisonment in the state penitentiary for not more than 1 year or by fine of not more than $5,000 or by both such fine and imprisonment.

2 At the time of Stanfill's indictment and trial, several cases had held that the use of "unlawfully" charged a misdemeanor pursuant to section 316.027(1), while the use of "willfully" charged a felony pursuant to section 316.27(2). See State v. Patterson, 284 So.2d 9 (Fla.2d DCA 1973); State v. Shepard, 299 So.2d 644 (Fla. 1st DCA 1974); Diggs v. State, 334 So.2d 333 (Fla.2d DCA 1976); and Holmes v. State, 342 So.2d 134 (Fla. 1st DCA 1977).
3 Florida Rules of Criminal Procedure 3.140(o) and 3.190(c) provide:

3.140(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

3.190(c) Time for Moving to Dismiss. Unless the court grants him further time, the defendant shall move to dismiss the indictment or information either before or upon arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based upon fundamental grounds, every ground for motion to dismiss which is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived.

4 Section 775.08(2) provides that the term "misdemeanor" does not mean a conviction for any violation of any provision of chapter 316, and section 316.026(4) provides that the penalty for violating section 316.027 is a felony.
5 See Johns v. Wainwright, 253 So.2d 873 (Fla. 1971); Ansin v. Thurston, 101 So.2d 808 (Fla. 1958).