Howlett v. State, 70-761

• Decision Date: 17 February 1972
• Docket Number: No. 70-761,70-761
• Citation: 260 So.2d 878
• Parties: Mack Daniel HOWLETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 878

260 So.2d 878

Mack Daniel HOWLETT, Appellant, v. STATE of Florida, Appellee.

No. 70-761.

District Court of Appeal of Florida, Fourth District.

Feb. 17, 1972.

Rehearing Denied May 8, 1972.

Walter N. Colbath, Jr., Public Defender, Jeffrey H. Barker and Charles W. Musgrove, Asst. Public Defenders, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, for appellee.

CROSS, Justice.

Appellant-defendant, Mack Daniel Howlett, appeals a judgment of conviction and sentence for the offense of larceny of a truck.

The truck in question was a pick-up truck owned by one Richard Smith. Smith was employed as a truck driver by Woods Brothers Trucking Company in Palm Beach County. Defendant was also employed by Woods Brothers. Whenever Smith drove one of his employer's trucks out of town, it was his custom to leave his pick-up truck at the trucking company office, with permission for his employer, Mr. Woods, to use it if it became necessary.

Early on the morning of January 6, 1970, the tractor-trailer which Smith was driving broke down near Kissimmee, Florida. When Smith telephoned his employer to report the breakdown, Mr. Woods instructed defendant to take the necessary repair parts in Smith's pick-up to the location of the inoperative truck. Neither defendant nor Smith's truck ever appeared at the location of the breakdown. Some weeks later, defendant was apprehended in Oregon in possession of Smith's truck.

An information was filed alleging that defendant had stolen the truck on January 12, 1970. Subsequently, a statement of particulars was filed which alleged that the offense was committed during the seventy-two hour period beginning at 12:01 a.m. on January 11, 1970.

At trial defendant testified that he had indeed taken the truck to Oregon, but that he had done so only after meeting Smith in Kissimmee and purchasing the pick-up from him. Defendant's motion for judgment of acquittal was denied, and the jury returned a verdict of guilty. Judgment of conviction and sentence were entered accordingly. This appeal followed.

The sole point on this appeal is whether the trial court erred in denying defendant's motion for judgment of acquittal where the information and statement of particulars alleged that the offense had been committed on January 11 or thereafter, and the evidence showed that the pick-up had actually been taken on January 6.

Defendant correctly contends that material allegations in an indictment or information must be proved as alleged, and a fatal variance between allegations and proof renders improper any conviction entered on that particular charge. E.g., Browning v. State, 1931, 101 Fla. 1051, 133 So. 847; Jacobs v. State, Fla.App.1966, 184 So.2d 711. However, not every variance between allegations and proof is a fatal variance. Fitzgerald v. State, Fla.App.1969, 227 So.2d 45. Rule 3.140(o), F.R.Cr.P., 33 F.S.A., provides that:

'(o) Defects and Variances. No indictment or information, or any count thereof, or any affidavit on which the defendant is to be tried shall be dismissed or judgment arrested or new trial granted because of any defect in the form of the indictment, information or affidavit or of misjoinder of offenses Or for any reason whatsoever unless the court is of the opinion that the indictment, information or affidavit is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial...