
    STATE v. BARNES.
    No. 66-12599.
    Court of Record, Broward County.
    May 16, 1967.
    James McCauley, Assistant County Solicitor, for the state.
    Brian T. Hayes of Parkhurst & Hayes, Fort Lauderdale, for the defendant.
   DOUGLAS S. LAMBETH, Judge.

This cause came on to be heard upon the defendant’s motion to quash the information filed herein and the said motion urging inter alia that the information does not state a crime, and the state of Florida and the defendant both being represented by counsel and the court being otherwise advised in the premises, it is thereupon ordered and adjudged that the information filed herein be and the same is hereby quashed and the state shall have thirty days to refile an amended information against the defendant.

The court finds as a matter of law that the charge herein was apparently filed under Florida Statute 849.09 (d) which makes it a felony to aid or assist in the setting up or promoting of a lottery.

The information, however, as drafted combines 849.09 (d) which is punishable as a felony and uses the charging words “in that he sold chances thereon . . .” which actions are violative of 849.09 (g).

Inasmuch as Florida Statute 849.09 (d) is punishable as a felony but the charging words charge an act proscribed by the legislature as a misdemeanor under Florida Statute 849.09 (g), the charge is incongruous and subject to a timely filed motion to quash.

For the grounds herebefore cited the information must be quashed.  