State v. Mars, 83-1512
| Citation | 473 So.2d 719,10 Fla. L. Weekly 1160 |
| Decision Date | 08 May 1985 |
| Docket Number | No. 83-1512,83-1512 |
| Parties | 10 Fla. L. Weekly 1160 STATE of Florida, Appellant, v. Frank MARS, Appellee. |
| Court | Court of Appeal of Florida (US) |
By motion for rehearing and motion to supplement the record, both of which we grant, the appellee has demonstrated that he did not request a jury instruction on the binding effect of the bill of particulars filed by the state. Because the appellee's action in requesting such an instruction was the primary basis for our conclusion that appellee could be tried again, we now grant the petition for rehearing and affirm the trial court's order dismissing the subsequent murder charges brought against appellee. In a previously filed brief appellee simply took the position that the state did not object to the instruction on the statement of particulars. In the absence from the record of the charge conference, we erroneously assumed that the appellee had requested the instruction. Appellee has now demonstrated by supplementing the record with the charge conference and a stipulation from the prosecutor who tried the case, that he did not request the instruction.
We reject the state's contention that appellee's objection to the state's motion to amend the bill of particulars constituted sufficient affirmative action by the appellee to bar the appellee from subsequently objecting on double jeopardy grounds when the state filed new charges arising out of the same incident. In our view, the state's motion to amend, coming after the case was submitted to the jury and after the jury had signaled its awareness of the problem, came much too late. The jury's action in acquitting appellee came after the state, having an initial indictment that was adequate to cover the time period proven at trial, voluntarily filed a statement of particulars erroneously describing and limiting the time period in which the offense took place. Thereafter, the state failed to catch the error and did not object when the court instructed the jury as to the binding effect of the statement of particulars. In fact, the state did not apparently realize the error until the jury caught it. By then, in our view, it was too late to seek amendme...
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