Jefferson v. State
| Decision Date | 24 December 1980 |
| Docket Number | No. 78-1454,78-1454 |
| Citation | 391 So.2d 747 |
| Parties | Dennis Charles JEFFERSON, Appellant, v. STATE of Florida, Appellee. /T4-152. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
No appearance for appellee.
Appellant was convicted by a jury of one count of burglary and one count of grand larceny. He contends that the trial court erred in not granting his motion for judgment of acquittal made at the close of the State's case and renewed at the close of all the evidence. We agree and reverse.
The information charged that appellant had committed the offenses between June 18, 1977 and June 21, 1977. In response to a motion, the State filed an amended statement of particulars specifying that the offenses occurred "within five hours either side of 1:00 a. m. on June 21, 1977, in Titusville, Brevard County, Florida."
At the trial, another participant in the crime testified for the State that he, appellant and others had burglarized the store in question twice late one Saturday night and early Sunday morning, between June 19 and June 21, 1977. He could not otherwise remember when the burglary took place. The owner of the store had been away, and he did not discover the burglary until he returned on June 21. The trial court took judicial notice that June 19, 1977 was Sunday, June 20 was Monday and June 21 was Tuesday. 1 Appellant's motion for judgment of acquittal on the ground that the State had not proved that a crime was committed at the time specified in the statement of particulars, was denied. Appellant claims error in denial.
This case falls squarely within the purview of State v. Beamon, 298 So.2d 376 (Fla.1974). In that case, although the Supreme Court was deciding the applicability of the theory of double jeopardy, to arrive at its conclusion it was necessary to discuss the effect of the variance between the statement of particulars and the proof. In Beamon, the defendant went to trial on a charge of robbery allegedly occurring on November 26, 1972. Thereafter, the State filed a bill of particulars alleging that the robbery occurred on November 24, 1972. The victim testified that she was robbed on November 26, 1972 and upon defendant's motion, the trial court entered a judgment of acquittal. The State then filed a second information, charging defendant with robbery on November 26, 1972 and he filed a motion to dismiss on the ground that he had been previously placed in jeopardy for the same offense. In deciding that jeopardy had not attached, the Supreme Court said:
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.... 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.... Thus it is clear that the bill of particulars on the first Information narrowed the date of the alleged offense to the date of November 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 (sic) 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...
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Gaines v. State
...that cases following the dicta in Beamon that particulars are cast in stone without regard to prejudice, see e. g., Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980), are overruled, sub silentio, by Hoffman. Since the present case does not involve the slightest reliance by Gaines on the......
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Taylor v. State, 80-1111
...64 Fla. 154, 156, 59 So. 193 (1912).3 Richardson v. State, 246 So.2d 771, 774 (Fla.1971).4 Appellant contends that Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980), requires reversal here, but it must be noted that in that case, the State did not, at any time, request leave to amend th......
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Stang v. State, 79-2286
...on the basis that the permitted amendment to the statement of particulars occurred before any evidence was submitted. Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980). This attempt to separate the Howlett and Hoffman holdings is unconvincing since jeopardy had already attached in both ......
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State v. Jefferson
...The petitioner in this case seeks review and reversal of the decision of the Fifth District Court of Appeal in Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980). Conflict is alleged between Jefferson and the cases of Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972) and Perlman v. Sta......