State v. Dell'Orfano

• Decision Date: 08 January 1992
• Docket Number: No. 90-0955,90-0955
• Citation: 592 So.2d 338
• Parties: STATE of Florida, Appellant, v. David DELL'ORFANO, Appellee. 592 So.2d 338, 17 Fla. L. Week. D221
• Court: Florida District Court of Appeals

Page 338

592 So.2d 338

STATE of Florida, Appellant, v. David DELL'ORFANO, Appellee.

No. 90-0955.

592 So.2d 338, 17 Fla. L. Week. D221

District Court of Appeal of Florida Fourth District.

Jan. 8, 1992.

Rehearing and Clarification Denied Feb. 14, 1992.

Robert A. Butterworth, Atty. Gen., Tallahassee, John M. Koenig, Jr. and Sarah B. Mayer, Asst. Attys. Gen., West Palm Beach, for appellant.

Joseph Degance of Joseph Degance, P.A., Fort Lauderdale, for appellee.

STONE, Judge.

We reverse a final order dismissing an information charging Dell'Orfano with sexual battery and other counts of assault on a child. The appellee is the victim's father. The information initially charged that the incidents occurred over a three year time period. The state later reduced this time frame to the 2 1/2 years between January 1, 1986 and June 30, 1988.

The state asserted that it was unable to narrow the time frame more specifically. The trial court accepted this representation, and that a good faith effort was made to do so, for the purpose of resolving the motion to dismiss on the face of the information.

The defendant argues that the information must be dismissed because the time frame is so broadly charged as to embarrass him in preparing a defense, such as alibi, and subjects him to the risk of a subsequent prosecution for the same offense. Florida Rule of Criminal Procedure 3.140(d)(3) requires that the time be alleged as specifically as possible. And Rule 3.140(o) authorizes dismissal if the information is:

[S]o 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 danger of a new prosecution for the same offense.

In State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977), this court set aside a trial court order dismissing an information that had initially charged an indecent assault occurring over a term of ten months that was reduced by the state to a four month time frame. There, as here, the state represented that the time period could not be further refined. The court stated:

Here involved is not the issue of granting a bill of particulars but the quality of compliance. It is not necessary that the exact date of the offense be alleged. See State v. Beamon, 298 So.2d 376 (Fla.1974). It is our opinion the State has complied with both the requirement of the bill and the requirement of due process. We do not believe the State has the burden of showing what it has done toward narrowing the time requirement. We are further of the opinion that the exact time is not an element of an offense and defendant can not so make it by presenting a "possible" defense of alibi.

See also Tingley v. State, 549 So.2d 649 (Fla.1989); Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984).

In State v. DeBianchi, 538 So.2d 984 (Fla. 4th DCA 1989), however, this court did uphold an order dismissing an indictment charging nine counts of sexual battery. The brief opinion in that appeal simply repeated the language of rule 3.140(o ) quoted above and added that our affirmance was without prejudice to the right of the state to obtain a new indictment upon more certain time periods. The trial court in this case relied upon DeBianchi, and also considered Goble v. State, 535 So.2d 706 (Fla. 5th DCA 1988), State v. Garcia, 511 So.2d 714 (Fla. 2d DCA 1987), and Knight v. State, 506 So.2d 1182 (Fla. 5th DCA 1987), in concluding that a dismissal of an information under these circumstances is required. Although we would not normally go behind the DeBianchi opinion to review the record in that case, it is necessary that we do so here as that record was used by the trial court in resolving the issue at the hearing in this case. The nature of the charges in DeBianchi were similar to those here. Some of the multiple counts covered a six year time frame, others covered a 4 1/2 year period. The trial court in DeBianchi weighed the evidence presented and found as a fact that the state could have narrowed the time frame further but had elected not to do so. ¹ This court in DeBianchi did not address the issue presented in this appeal, whether the information must be dismissed because of the length of the time frame even if the state in good faith has narrowed that time as specifically as could be reasonably expected considering the information available to the state.

In Knight, the defendant was charged with crimes similar to those alleged here over periods of four years, three years, and ten months in separate counts. The state had declined to narrow the longer time periods although it did reduce the time in the ten month count to three months. Although the victim in Knight was able to recall various events in relation to her grade in school at the time, the state made no effort to correlate the time frames to the victim's testimony. In dismissing the counts involving the longer time periods the Knight court added a comment that no reported Florida case had ever upheld such "indefinite" time periods in a charge, and that to do so "eviscerates" rule 3.140(d)(3).

In Garcia, a trial court dismissal of an information was upheld in a similar case involving a two year time frame. In that case the trial court found from the evidence that the state could be "substantially more specific than it has been in either the information or the bill of particulars responded to which simply repeats the date set forth in the information." And in Goble the court, relying on Knight, ordered the discharge of the defendant, charged with committing a sexual battery within a 2 1/2 year time frame, because of the length of the time period alleged.

The trial court in this case acknowledged a concern that there were no analogous cases favorable to the state involving this lengthy a time frame. The trial court concluded that the law mandates dismissal even in the absence of a more specific showing that the defendant would be hampered in preparing a defense or be subjected to double jeopardy. Considering the issue as one of law, the trial court concluded that this time span was, per se, unreasonably prejudicial even if the defense argument of prejudice is entirely speculative.

However, we conclude that the length of the time frame is not the sole criteria on which a dismissal of the information may be based. Exclusive of the dicta in Knight, apparently followed by the court in Goble, we find nothing in DeBianchi, Knight, or Garcia inconsistent with our upholding this information, provided that the trial court has first found that the state made a good faith effort to further narrow the time period.

Nothing in this record, or in any of the cited cases compels a conclusion that although a defendant can be expected to recall helpful matters occurring within a six, nine, or twelve month time frame, he cannot be expected to do so over a longer time frame. We also note that the caselaw...