Hutchinson v. State, 83-858
| Decision Date | 08 August 1984 |
| Docket Number | No. 83-858,83-858 |
| Citation | 453 So.2d 900 |
| Parties | Ronald HUTCHINSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellee charged appellant with the theft of an automobile. After the jury returned a guilty verdict, the court withheld adjudication and placed appellant on probation.
The information alleged that the theft occurred on March 23, 1980. The statement of particulars alleged that the theft occurred between March 23 and May 16. However, at trial, appellee elicited testimony from the driver and from the owner of the car that the theft occurred on March 20. Appellee presented no evidence that the theft occurred between March 23 and May 16 and made no effort to amend either the information or the statement of particulars. The court denied appellant's motion for judgment of acquittal.
Appellant contends the trial court should have granted his motion for judgment of acquittal because appellee failed to prove the crime charged in the information and the statement of particulars. On the other hand, appellee contends that where the record does not demonstrate prejudice to appellant, this court should affirm, relying upon Hoffman v. State, 397 So.2d 288 (Fla.1981).
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), the court held
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 .... 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.
The Supreme Court revisited Beamon in Hoffman v. State, supra, and qualified that portion of Beamon which precluded amendment. The court held that the State may amend its statement of particulars at trial. However, if the State seeks to amend,
it is incumbent on the state to demonstrate a lack of prejudice to the defendant. In other words, it is essential that the circumstances establishing no prejudice affirmatively appear in the record. When such amendment is requested, the trial court should inquire into the surrounding circumstances to determine whether the amendment would result in harm or prejudice to the defendant.
The court approved this court's affirmance of Hoffman's conviction because the trial court conducted the proper inquiry and established on the record that the defendant suffered no prejudice. Accord, Taylor v. State, 444 So.2d 931 (Fla.1983). In Stang v. State, 421 So.2d 147 (Fla.1982), however, circumstances establishing no prejudice did not affirmatively appear on the record, and the court quashed this court's affirmance of the defendant's conviction.
In their arguments, the parties have overlooked the State's failure to move to amend the statement of particulars. In State v. Jefferson, 419 So.2d 330 (Fla.1982), proof of the date of the offense did not conform to the date alleged in the statement of particulars. The defendant moved for judgment of acquittal on that basis. The State never moved to amend, but the trial court denied the motion for judgment of acquittal. The district court reversed the conviction, 391 So.2d 747 (Fla. 5th DCA 1980), holding that the case fell squarely within the holding of Beamon. The Supreme Court approved There is a significant distinction, however, between the facts of Hoffman and those in the instant case. In Hoffman, the state moved to amend the statement of particulars, which motion the trial court granted, and the case proceeded to conviction. No such motion was made in the instant case at the time the state realized that its proof did not conform to the ... statement of particulars.
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The failure of the prosecutor to move to amend the statement of particulars to conform with the...
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Cox v. State, 1D99-2737.
...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 DCA 1996)(evidence of value did not support charge of grand the......
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Gardner v. State, 98-2427.
...that the three-day variance between the information and the proof was indeed prejudicial. See id. at 332; see also Hutchinson v. State, 453 So.2d 900, 902 (Fla. 4th DCA 1984)(judgment reversed where evidence at trial indicated offense occurred on a date more than one day outside that allege......
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Burgos v. State, 94-02373
...that the defense did not move for a statement of particulars which would have made this evidence relevant. Cf. Hutchinson v. State, 453 So.2d 900 (Fla. 4th DCA 1984) (the defendant was entitled to judgment of acquittal when the state failed to prove the offense occurred on the date in the s......
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