State v. Beamon
| Citation | 298 So.2d 376 |
| Decision Date | 31 July 1974 |
| Docket Number | No. 44582,44582 |
| Parties | The STATE of Florida, Petitioner, v. Larry Darnell BEAMON, Respondent. |
| Court | United States State Supreme Court of Florida |
Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for petitioner.
Phillip A. Hubbart, Public Defender; and Eva Weisner, Asst. Public Defender, for respondent.
By petition for writ of certiorari, we are asked to review the decision of the Third District Court of Appeal below. Jurisdiction vests pursuant to Art. V, § 3(b)(3), Fla.Const., based upon conflict between that decision and the decisions of LeRea v. Cochran, 115 So.2d 545 (Fla.1959); State v. Bentley, 81 So.2d 750 (Fla.1955); and State v. Cootner, 60 So.2d 734 (Fla.1952), as will hereafter appear.
On december 19, 1972, the State filed its information charging respondent with one count of robbery and one count of buying, receiving or concealing stolen property, both offenses allegedly occurring on November 26, 1972. Thereafter, the State filed a bill of particulars which mistakenly alleged that the offense of robbery occurred on Nov. 24, 1972. Non-jury trial commenced on January 23, 1973, at which time the state Nolle prossed the second count (stolen property) of the information. The State called its first witness, the robbery victim, who testified that she was robbed on Nov. 26, 1972. At that point, defense counsel objected and moved for judgment of acquittal on the ground that the proof adduced at trial relating to the date of the offense materially varied from the date of the offense as alleged in the bill of particulars. The trial judge granted the motion and declared the defendant 'not guilty of the crime of robbery On Nov. 24, 1972.' (emphasis ours)
The State then filed a second information on Jan. 24, 1973, charging respondent with one count of robbery and one count of displaying a firearm while committing a felony, both offenses allegedly occurring on Nov. 26, 1972. Subsequently, the State filed an amended bill of particulars alleging Nov. 26, 1972, as the date of the offense. This second information was bottomed on the same incident as the first information, to-wit: a robbery of Patti Meyers on Nov. 26, 1972. Respondent filed a motion to dismiss, which the trial judge granted, on the ground that the respondent had been previously placed in jeopardy for the Same offense and that the State was estopped collaterally from charging him with displaying a firearm during the robbery 'for which he Had been previously placed in jeopardy and acquitted.'
On appeal, the Third DCA affirmed the judgment, reasoning that the acquittal constituted a bar to subsequent prosecution for the robbery in question and that the State was collaterally estopped as to the second count of the information. We cannot agree.
It is the defendant--not the State--who is estopped. The defendant is estopped by virtue of His inconsistent positions in first claiming as a basis for acquittal the materiality of the date and then contending on the new information that the actual, different date of the alleged offense is immaterial now, so that whatever the date of the alleged offense he was acquitted of it in the first trial. He cannot carry water on both shoulders. This was made clear by this Court's reasoning in the case for conflict of State v. Cootner, Supra, involving a different ownership of property: (60 So.2d 737)
'The appellee having obtained an instructed verdict of acquittal in the first case on the ground that the ownership of the property was a material allegation and there was a fatal variance between the allegation and the proof, is estopped to now complain on a prosecution of a second information that the same would place him in double jeopardy because the allegation with reference to the ownership of the property was immaterial.'
Sub judice, in entering a judgment of acquittal on the first information, the trial court specifically held that the State was limited in its proof to an offense occurring on Nov. 24, 1972, rather than Nov. 26. This was the very position taken and strongly urged by the respondent as a basis for his acquittal in arguments before the trial court on the first information. Since no proof as to an offense on Nov. 26 was then allowed, the State was not estopped to pursue such Nov. 26 offense by a failure to prove what did Not happen on Nov. 24!
When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; the effect of such a specification of date in a bill of particulars is to narrow the Indictment or Information as to the time within which the act or acts allegedly constituting the offense may be proved. Martin v. Karel, 106 Fla. 363, 143 So. 317 (1932); Smith v. State, 93 Fla. 238, 112 So. 70 (1927); Middleton v. State, 74 Fla. 234, 76 So. 785 (1917); Ex parte Clarkson, 72 Fla. 220, 72 So. 675 (1916). Also, the fact that the date charged in the first Information in this case was Nov. 26, 1972, does not control over a specification in the bill of particulars under that Information that the offense was committed on Nov. 24, 1972. Nor may the State remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence. Crowell v. State, 238 So.2d 690 (Fla.App.3d 1970). Thus, it is clear that the bill of particulars on the first Information narrowed the date of the alleged offense to the date of Nov. 24, 1972, and respondent could not therefore be convicted under that Information, as so limited, of an offense occurring on Nov. 26, 1972, and the able trial judge was imminently correct in entering an acquittal on the trial under the first Information.
Despite the specification of an exact date in an Information, and where no other date is set forth in a bill of particulars, a different time may be shown at the trial, and a conviction may be had if the proof shows the offense to have been committed at any time prior to the accusatory date In the Information (within the bar of the statute of limitations), Where there is no bill of particulars specifying a different date. State v. Clein, 93 So.2d 876 (Fla.1957); Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944); Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943).
The above rules are to be distinguished, however, from an information charging a violation 'on Or about' a named date; this has been expressly held by this Court to be sufficient in Sparks v. State, 273 So.2d 74 (Fla.1973). We said there:
Numerous citations are set forth in Sparks from the various states which have receded from the old bar against the use of 'on or about' as a sufficient basis on which to charge an offense.
We conclude that respondent's trial under the first Information placed him in jeopardy only of an offense of robbery, if any, occurring on Nov. 24, 1972; it Did not place him in jeopardy nor constitute a collateral estoppel of the alleged offense of robbery occurring on Nov. 26, 1972.
The district court correctly noted that the test to sustain a plea of former jeopardy is that it must be made to appear that (1) there was a former prosecution in the same state for the Same offense; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the same prosecution; and (4) that The particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar. State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944); King v. State, 145 Fla. 286, 199 So. 38 (1940). However, the district court erred in applying this test Sub judice when it determined that the respondent had...
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...905 (1930); Usary v. State, 172 Tenn. 305, 112 S.W.2d 7 (1938); State v. Brooks, 215 Wis. 134, 254 N.W. 374 (1934). 7 In State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), since Beamon was charged twice with robbery, it is obvious th......
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...court also certified the following question of "great public importance" to the Florida Supreme Court: Does the rule of State v. Beamon [298 So.2d 376 (Fla.1974) ] permitting the filing of subsequent charges apply in a case where the defendant was acquitted by general verdict in the initial......
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