Sipos v. State
| Decision Date | 24 October 1956 |
| Citation | 90 So.2d 113 |
| Parties | Joseph SIPOS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Sam E. Murrell & Sons, Orlando, for appellant.
Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
The appellant was tried for having broken and entered a certain building, the property of 'Sterchi Brothers, Inc., a corporation,' with intent to commit grand larceny. After all testimony had been introduced, and while the appellant's attorney was making his closing argument to the jury, the judge permitted the Assistant County Solicitor to amend the information by inserting after the word 'Brothers' the word 'Stores' so that the information as amended charged the breaking and entering of a building of 'Sterchi Brothers Stores, Inc., a corporation * * *.'
The judge stated quite frankly that but for the statute, Sec. 906.08(5), Florida Statutes 1953, and F.S.A., he would not allow the amendment but he construed the law as directing the court to 'cause the true name to be inserted in the * * * information * * * if in the course of the trial a description other than by the true name is disclosed.' We have quoted from the comment he made when the argument of counsel on the propriety of the amendment was in progress.
The motion of the solicitor had been prompted by the statement of appellant's attorney to the jury that there was a fatal variance between the allegation of ownership by Sterchi Brothers, Inc., and the proof of ownership in Sterchi Brothers Stores, Inc.
The pertinent statute provides that '[i]f in the course of the trial the true name of any * * * corporation, described otherwise than by the true name, is disclosed by the evidence, the court shall cause the true name to be inserted in the * * * information * * * wherever the name appears otherwise.' (Italics supplied.)
The judge considered that the belated request for permission to amend was made 'in the course of the trial' but we have difficulty agreeing that such a broad construction could be given these words in the circumstances surrounding the ruling. The amendment, which affected a material allegation of the information, was allowed after the taking of testimony was concluded. When the judge announced his ruling that the error could be corrected at this late period, the attorney for the appellant asked for a mistrial or a continuance and his requests were denied.
We held in Alvarez v. State, 157 Fla. 254, ...
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State v. Anderson
...information which did not comply with the Florida Constitution. Relying on Alvarez, we again reversed a conviction in Sipos v. State, 90 So.2d 113 (Fla.1956), where the trial judge had permitted a similar substantive amendment of an information during trial and over the objection of the def......
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State v. Emanuel
...is defective. Lopez v. State, 1932, 106 Fla. 361, 143 So. 303; Alvarez v. State, 1946, 157 Fla. 254, 25 So.2d 661; Sipos v. State, Fla.1956, 90 So.2d 113. That problem does not exist in the instant case since the information contains the correct name of the corporate owner, implicitly amend......
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Johnson v. State, 210
...when its effect would prejudice a legal right of the defendant. Alvarez v. State, 1946, 157 Fla. 254, 25 So.2d 661; Sipos v. State, Fla.1956, 90 So.2d 113. Defendant filed a motion to produce and asked the court to require the state 'to furnish the defendant with any statements he may have ......
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Lackos v. State, 48898
...taken by the trial court. Because of conflict in decision with Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (1946), and Sipos v. State, 90 So.2d 113 (Fla.1956), we issued our order allowing certiorari and dispensing with oral argument. After studying the briefs submitted by the parties, we ......