Full Opinion

Third District Court of Appeal State of Florida Opinion filed October 7, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D25-0056 Lower Tribunal No. B24-8833 ________________ Hudson Noel, Appellant, vs. State of Florida, Appellee. An Appeal from the County Court for Miami-Dade County, Jennifer Azar, Judge. Carlos J. Martinez, Public Defender, and Nicholas A. Lynch, Assistant Public Defender, for appellant. James Uthmeier, Attorney General, and Daihana Chang, Assistant Attorney General, for appellee. Before LOGUE, LOBREE, and BOKOR, JJ. LOGUE, J. Hudson Noel appeals his conviction and sentence for assault of a person 65 years of age or older, a first-degree misdemeanor, in violation of sections 784.08(2)(d) and 784.011(1), Florida Statutes. Noel’s sole argument on appeal is that the county court lacked subject matter jurisdiction because the information charged him with a felony rather than a misdemeanor. We disagree and affirm. BACKGROUND This case arises from an incident that took place near a bus stop on February 13, 2024. Noel was observed cursing at an elderly female, Mary Castillo, age 73. Arthur Eleazer witnessed the altercation and became concerned. Eleazer approached Noel and asked him to leave Castillo alone. Noel became even more agitated and aggressive, shouting and ultimately pulling out a Swiss army knife. Noel continued threatening both victims as he approached Castillo. Eleazer then pushed Noel away, following which a chase of Eleazer by Noel ensued. Thereafter, officers arrived at the scene and collected statements as part of their investigation. Castillo stated that while Noel never placed his hands on her, he did threaten to kill her. Meanwhile, Noel threatened officers, following which he was taken into custody. The original complaint/arrest affidavit listed the preliminary charges as “1. F/3- Assault/Aggravation/with a 2 deadly weapon” and “F/2- Assault/Aggravation/on person 65 or older/dead weap [sic].” The State thereafter filed an information on April 24, 2024, charging Noel with “1. ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER 784.08(2)(D) & 784.011 MISD. 1D” as follows: COUNT 1 HUDSON NOEL, on or about February 13, 2024, in the County and State aforesaid, did unlawfully and intentionally threaten by word or act to do violence to the person of another, to wit/; Mary Castillo, a person 65 of age or older, coupled with an apparent ability to do so, and did some act, to wit: THREATENING TO KILL HER WHILE HOLDING A BOX CUTTER, which created a well-founded fear in such other person that such violence was imminent, in violation of s. 784.011 and s. 784.08(2)(d), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. Prior to the start of trial, the county court judge conducted a colloquy of Noel regarding the State’s plea offer and discussed the charges against him: Mr. Noel, you were charged with assault on a person 65 years of age or older, which is a first degree misdemeanor. The State’s plea offer is for you to plead guilty. I’ll assess court costs. You’ll have a year to pay the court costs and 364 days in jail. That’s the maximum penalty you face under this charge, which is a first degree misdemeanor. The county court judge asked Noel, on the record, if he understood the charges against him, particularly that he was charged with a first-degree 3 misdemeanor with a maximum penalty of 364 days in jail. Later, during voir dire, the court read the information aloud in open court. At the same time, the court also defined the term “information” for the jury. After the close of evidence, the jury was instructed that for Noel to be found guilty of “the crime of assault on a person 65 years of age or older,” the State must prove the following four elements beyond a reasonable doubt: 1. Hudson Noel intentionally and unlawfully threatened, either by word or act, to do violence to Mary Castillo. 2. At the time, Hudson Noel appeared to have the ability to carry out the threat. 3. The act of Hudson Noel created in the mind of Mary Castillo a well-founded fear that the violence was about to take place. 4. Mary Castillo was at the time 65 years of age or older. Ultimately, the jury returned a verdict of “guilty of assault on a person 65 years of age or older.” The court then sentenced Noel to 364 days in jail. This appeal followed. ANALYSIS Whether a trial court has subject matter jurisdiction is reviewed de novo. Lack v. State, 333 So. 3d 313, 313 (Fla. 1st DCA 2022). “Subject matter jurisdiction is determined from the face of the accusatory pleading.” Brehm v. State, 427 So. 2d 825, 826 (Fla. 3d DCA 1983). “If the information charges only the misdemeanor, the circuit court 4 does not have jurisdiction[.]” Christopher v. State, 397 So. 2d 406, 406 (Fla. 5th DCA 1981). See also Dicaprio v. State, 352 So. 2d 78, 79 (Fla. 4th DCA 1977); Pope v. State, 268 So. 2d 173, 175 (Fla. 2d DCA 1972); Waters v. State, 354 So. 2d 1277, 1278 (Fla. 2d DCA 1978) (“The information by which appellant was charged failed to allege that the property stolen was worth $100 or more; therefore, the crime charged was only a misdemeanor under Section 812.031(3). Since the circuit court does not have jurisdiction when only a misdemeanor is charged, the trial court did not have jurisdiction in this case. Article V, Section 5(b), Florida Constitution; Section 26.012, Florida Statutes (1975).”). The burden of properly invoking the court’s jurisdiction is on the state. See, e. g., Pope, 268 So. 2d at 176. Here, the State unequivocally charged Noel, via information, with one misdemeanor count. In the information, the State cited to sections 784.011 and 784.08(2)(d), Florida Statutes. Section 784.011 states: (1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. (2) Except as provided in subsection (3), a person who assaults another person commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. 5 (3) A person who assaults another person in furtherance of a riot or an aggravated riot prohibited under s. 870.01 commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. § 784.011, Fla. Stat. Additionally, section 784.08(2)(d) states: (2) Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows: .... (d) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree. § 784.08(2)(d), Fla. Stat. Here, the face of the information, referenced only a misdemeanor. Further, the recommended sentence suggested a misdemeanor (i.e., under one year), and the jury instruction addressed only a misdemeanor charge. Where the information filed by the State expressly cites to a misdemeanor statute, the State brought the charges in the county court which normally can only hear misdemeanors, the trial court instructed the defendant that the charge was a misdemeanor, and the instruction to the jury was limited to the elements of a misdemeanor, the circumstance that the information contained 6 facts that could support a felony charge does not change the charge to a felony thus depriving the county court of jurisdiction. See, e.g., Radford v. State, 360 So. 2d 1303, 1304 (Fla. 2d DCA 1978) (holding the circuit court lacked jurisdiction because the information charged a misdemeanor, as it concluded with “the usual reference to the pertinent statutory section,” alleging a “‘violation of Florida Statute 784.03,’ which is the misdemeanor statute,” even though the information also contained the words “battery on police officer” and alleged the battery occurred while the officer was acting in his official capacity, which could constitute a felony). Therefore, jurisdiction was properly before the county court. Christopher, 397 So. 2d at 406; Brehm, 427 So. 2d at 826. Accordingly, we affirm. Affirmed. 7