Stang v. State

• Decision Date: 02 September 1982
• Docket Number: No. 61194,61194
• Parties: Gerald STANG, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 147

421 So.2d 147

Gerald STANG, Petitioner, v. STATE of Florida, Respondent.

No. 61194.

Supreme Court of Florida.

Sept. 2, 1982.

Rehearing Denied Nov. 24, 1982.

Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen. and Laura R. Morrison and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for respondent.

PER CURIAM.

We review the decision of the District Court of Appeal, Fourth District, in Stang v. State, 403 So.2d 542 (Fla. 4th DCA 1981), wherein the district court has certified, as a question of great public importance, whether this Court's recent decision in Hoffman v. State, 397 So.2d 288 (Fla.1981), qualifies dicta from our earlier decision 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). In Hoffman, we held that, even after jeopardy attaches, the State is permitted to amend a statement of particulars to correct a discrepancy as to the date of the offense. Earlier, in Beamon, in dicta we stated that the State may not remedy an erroneous date specified in the statement of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of evidence. We hold that Hoffman does qualify Beamon. Applying the standard of prejudice announced in Hoffman, we further hold that the unique facts of this case demonstrate prejudice to the defendant. Therefore, we quash the decision of the district court holding that Stang was not prejudiced.

Stang was charged with two counts of forgery. In a statement of particulars filed in July, 1979, the State specified that both offenses occurred between the hours of 1 and 7 p.m. on April 27, 1979.

In his opening statement at trial, Stang's counsel told the jury that the State would be unable to prove beyond a reasonable doubt that the alleged crimes took place on April 27, 1979. He argued that the evidence would show that the checks had been issued one week earlier and that the defense would put on testimony to show that the incident could not have occurred on the date specified in the information and bill of particulars.

After four State witnesses had testified at trial, the State realized that the date in the charging documents was incorrect and moved to change the date in the statement of particulars to April 20, 1979. Over Stang's objection that his sole defense hinged on the State's inability to prove the proper date, the trial court granted the motion and suggested that Stang recall all of the witnesses who had already testified and permitted Stang to make an amended opening statement to the jury if he so desired. Stang thereupon requested that two witnesses be recalled for purposes of cross-examination. He did not, however, choose to amend his opening statement. Subsequently, Stang's taped confession was played to the jury, and he was found guilty as charged.

The Fourth District affirmed the convictions. While acknowledging dicta of this Court's decision in State v. Beamon, the district court's majority relied upon Hoffman v. State and characterized Stang's trial as "fair" in view of the trial court's willingness to allow the petitioner to restart the proceedings following the amendment to the statement of particulars. Judge Anstead dissented, focusing upon the prejudicial nature of the granting of the amendment and stating that he could not imagine any greater prejudice than forcing the defendant to go back out and face the same jury stripped of the only defense he has claimed at trial.

In State v. Beamon, the State filed an information charging a defendant with robbery and buying, receiving, or concealing stolen property, both offenses allegedly occurring on November 26, 1972. The State filed a bill of particulars which mistakenly alleged that the robbery occurred on November 24, 1972. During a nonjury trial, the defense counsel moved for a judgment of acquittal after the State's first witness testified that she was robbed on November 26, 1972. The trial judge granted the motion and declared the defendant not guilty of the crime of robbery on November 24, 1972. The State then filed a second information and an amended bill of particulars alleging November 26, 1972, as the date of the offense. While the trial court granted a motion to dismiss on the ground that the defendant was previously placed in jeopardy for the "same offense" and the Third District Court of Appeal affirmed, we held that no double jeopardy and no collateral estoppel were involved. In dicta, we stated:

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.... 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.

State v. Beamon, 298 So.2d at 378-79.

More recently, however, in Hoffman v. State, we expressly qualified Beamon insofar as it could be interpreted to prohibit any amendment to a statement of particulars after trial has commenced and held that such an amendment is allowed if a defendant will not be prejudiced by it. Hoffman was charged by information with committing armed robbery and false imprisonment on June 1, 1977. The State filed a statement of particulars alleging that the offenses occurred between 11 a.m., June 1, 1977, and 11 a.m., June 2, 1977. After opening statements, the defense counsel pointed out that during its opening argument, the State had commented that the crimes occurred during the late evening of May 31, 1977, or early morning of June 1, 1977. At that point, the State requested permission to amend the statement of particulars, but the defense asked that the State be restricted to the date in the original statement of particulars. After questioning both attorneys regarding the propriety and effect of allowing the amendment, the court granted the State's request. The court subsequently denied a defense motion for acquittal, ruling that the defendant had not shown that he had been embarrassed in his defense or otherwise prejudiced. On appeal, the district court found that the defendant had not demonstrated that amending the statement of particulars had prejudiced him. We approved the district court's decision and reiterated that the purpose of the bill of particulars is to give the defendant notice of the particular acts relied upon by the State to establish the crime charged so that a defendant may be fully advised of the nature of the accusation against him and so that he may have an opportunity to prepare a defense. We emphasized that criminal procedure rules are not intended to furnish a procedural device to escape justice and said:

[W]e are again persuaded that the modern trend in criminal cases "is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial." [Lackos v. State,] 339 So.2d at 219 [ (Fla.1976) ] (quoting Grimes, J.).

397 So.2d at 290.

We further explained in Hoffman that on appeal the defendant has the burden of demonstrating prejudice, but at trial the State, when seeking to amend a statement of particulars, must demonstrate a lack of prejudice to the defendant, and the trial court must inquire into the surrounding circumstances to determine whether the amendment would result in harm or prejudice. The record in Hoffman clearly established that the defense was neither misled by the incorrect date nor prejudiced by the amendment.

We cannot reach the same conclusion in the present case since circumstances establishing no prejudice do not affirmatively appear in the record. What does appear from the record is summarized by Judge Anstead in his dissent as follows:

In essence, ...