State v. Garcia
| Decision Date | 21 August 1987 |
| Docket Number | No. 86-2990,86-2990 |
| Parties | 12 Fla. L. Weekly 2059 STATE of Florida, Appellant, v. Louis A. GARCIA, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
Diana M. Allen of Stiles, Allen & Taylor, P.A., Tampa, for appellee.
The state appeals the trial court's order dismissing an information charging the defendant with three counts of sexual battery and one count of lewd and lascivious conduct. We affirm.
The first three counts of the state's information charged that "LOUIS A. GARCIA, between the 1st day of January, 1984 and the 15th day of January, 1986 in the county of Hillsborough, and State of Florida, being then eighteen (18) years of age or older, did then and there unlawfully and feloniously commit sexual battery upon J.W., a person eleven (11) years or younger":
(Count I) by penetrating the vagina of J.W. with his penis or by placing his penis in union with the vagina of said J.W.;
(Count II) by penetrating the vagina of J.W. with his tongue or by placing his tongue in union with the vagina of said J.W.;
(Count III) by penetrating the vagina of J.W. with his finger or fingers.
The remaining count charged that Garcia:
(Count IV) between the 1st day of January, 1984 and the 15th day of January, 1986 ... did handle, fondle, or make an assault upon J.W., a child under fourteen (14) years of age, in a lewd, lascivious or indecent manner, by handling, fondling or otherwise touching the vaginal area or breasts of J.W. and/or encouraging or enticing J.W. to touch or fondle LOUIS A. GARCIA'S genital area.
At the defendant's request the state provided a statement of particulars; however, the court found that it did not narrow the time period during which the alleged crimes occurred. In its amended order dismissing the information the court ruled that it was:
so vague, indistinct or indefinite as to mislead or embarrass the Defendant in the preparation of his defense or to expose him after conviction or acquittal to substantial danger of a new prosecution for the same offenses and is therefore violative of Rule 3.140, Rules of Criminal Procedure.
The state contends that the trial court erred in dismissing the information when the state could not, because of the witness, narrow the alleged time frame. We disagree.
When a court orders the prosecuting attorney to furnish a statement of particulars, such statement shall specify as definitely as possible the place, date, and all other material facts that are specifically requested and known to the prosecuting attorney. Fla.R.Crim.P. 3.140(n). Here the trial judge, in granting the defendant's motion to dismiss, found 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."
At the hearing on the defendant's motion to dismiss, the state represented that the alleged sexual abuse of the victim, an eight-year-old female, had begun a few days after the defendant moved in with the victim and her mother in the beginning of January 1984. The prosecutor stated that the sexual abuse ended when the crime was reported to the mother in mid-January 1986. The record does not disclose the statement of particulars. We agree with the trial judge that the state appears to have the ability to allege, at least in two of the counts, a narrower time frame.
We think that the state's reliance on State v. Belton, 468 So.2d 495 (Fla. 5th DCA 1985) and State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976) is...
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...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 cir......
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...specific but failed to do so. Two cases involving charges of sexual battery against young children are illustrative. In State v. Garcia, 511 So.2d 714 (Fla. 2d DCA 1987), the second district held that charges of sexual battery upon a young child were properly dismissed where the state was f......
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