Audano v. State, No. 95-01436
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | RYDER |
| Citation | 674 So.2d 882 |
| Docket Number | No. 95-01436 |
| Decision Date | 29 May 1996 |
| Parties | 21 Fla. L. Weekly D1306 Peter Anthony AUDANO, Jr., Appellant, v. STATE of Florida, Appellee. |
Page 882
v.
STATE of Florida, Appellee.
Second District.
Stuart C. Markman, James E. Felman and Susan H. Freemon of Kynes, Markman & Felman, P.A., Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.
RYDER, Acting Chief Judge.
This is Mr. Audano's second appearance before this court. In Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994), we reversed his convictions for committing lewd and lascivious acts on a child under the age of sixteen and remanded the case for a new trial. At his second trial, the jury again found Mr. Audano guilty, and he now challenges those convictions. He has raised
Page 883
three issues, but we find merit in only one, that the state failed to prove the act charged in Count III occurred in the time frame alleged in the information and the bill of particulars. We affirm Mr. Audano's other two points on appeal without discussion.Count III charged that Audano committed sexual battery on the victim by placing his tongue on her vagina "beginning on or about the 3rd day of May, 1991, through the 4th day of July, 1991...." In response to a motion by Audano's counsel, the state filed a bill of particulars, which also stated that the incident alleged in the count occurred between those dates. At trial, the victim testified the oral sexual activity charged in Count III occurred after July 4, 1991. The state did not present any other evidence to establish when the crime had been committed, nor did it ask to amend the information to conform to the evidence. At the close of the state's case, Audano moved for a judgment of acquittal on Count III, but the trial court denied his motion.
When a bill of particulars narrows the time within which the crime occurred, and the prosecution fails to show the defendant committed the offense within that time frame, a conviction on the charge must be reversed. State v. Jefferson, 419 So.2d 330, 331-32 (Fla.1982); State v. Beamon, 298 So.2d 376, 378-79 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). We, therefore, reverse Mr. Audano's conviction for Count III, and remand to the trial court to enter a judgment of acquittal on that count. We affirm his convictions on Counts I and II.
Affirmed in part, reversed in part and...
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Hitchcock v. Sec'y, DOC, Case No. 3:05-cv-487-J-33MCR
...Yes, Your Honor.At this time I would like to make an Oral Motion for Judgment of Acquittal, and I would rely on Audano v. State, 674 So.2d 882, which is a Florida Second DCA, 1996 case.Page 15Your Honor, it is my contention that the evidence presented by the State, places the child at the a......
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Bettey v. State, No. 1D17–0064
...fails to show the defendant committed the offense within that time frame, a conviction on the charge must be reversed." Audano v. State , 674 So.2d 882 (Fla. 2d DCA 1996) (citing State v. Jefferson , 419 So.2d 330, 331–32 (Fla. 1982) ).At trial in March 2013, M.B. testified that she was eig......
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Cox v. State, No. 1D99-2737.
...offense alleged in the information, the defendant's motion for judgment of acquittal should be granted. See, generally, Audano v. State, 674 So.2d 882, 883 (Fla. 2d DCA 1996); Hutchinson v. State, 453 So.2d 900, 902 (Fla. 4th DCA 1984). See also J.P. v. State, 681 So.2d 1183, 1184 (Fla. 2d ......
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Gisi v. State, No. 2D04-681.
...to establish that the offense occurred on the date specified. See State v. Jefferson, 419 So.2d 330 (Fla.1982); see also Audano v. State, 674 So.2d 882, 883 (Fla. 2d DCA 1996) ("When a bill of particulars narrows the time within which the crime occurred, and the prosecution fails to show th......
-
Hitchcock v. Sec'y, DOC, Case No. 3:05-cv-487-J-33MCR
...Yes, Your Honor.At this time I would like to make an Oral Motion for Judgment of Acquittal, and I would rely on Audano v. State, 674 So.2d 882, which is a Florida Second DCA, 1996 case.Page 15Your Honor, it is my contention that the evidence presented by the State, places the child at the a......
-
Bettey v. State, No. 1D17–0064
...fails to show the defendant committed the offense within that time frame, a conviction on the charge must be reversed." Audano v. State , 674 So.2d 882 (Fla. 2d DCA 1996) (citing State v. Jefferson , 419 So.2d 330, 331–32 (Fla. 1982) ).At trial in March 2013, M.B. testified that she was eig......
-
Cox v. State, No. 1D99-2737.
...offense alleged in the information, the defendant's motion for judgment of acquittal should be granted. See, generally, Audano v. State, 674 So.2d 882, 883 (Fla. 2d DCA 1996); Hutchinson v. State, 453 So.2d 900, 902 (Fla. 4th DCA 1984). See also J.P. v. State, 681 So.2d 1183, 1184 (Fla. 2d ......
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Gisi v. State, No. 2D04-681.
...to establish that the offense occurred on the date specified. See State v. Jefferson, 419 So.2d 330 (Fla.1982); see also Audano v. State, 674 So.2d 882, 883 (Fla. 2d DCA 1996) ("When a bill of particulars narrows the time within which the crime occurred, and the prosecution fails to show th......