State v. Yzaguirre, 89-03484
| Decision Date | 05 October 1990 |
| Docket Number | No. 89-03484,89-03484 |
| Parties | 15 Fla. L. Weekly D2486 STATE of Florida, Appellant, v. Ray YZAGUIRRE, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellant.
Francis W. Sams, Naples, for appellee.
The central question before us in this capital sexual battery matter, arising from acts alleged to have been engaged in by Yzaguirre with his minor natural daughter, is whether the trial court erred in dismissing Count II of an amended information alleging that the crimes occurred in periods from March 10, 1968 to March 10, 1970 and March 10, 1970 to March 10, 1971. The trial court dismissed the amended information finding it vague and indefinite. We reverse and remand.
A hearing was conducted on August 7, 1989, at which the time specificity of the instant information was raised before the trial court. On that occasion, the state announced that it would "make an effort to narrow" the periods when the illegal acts occurred. Thereafter, but prior to a hearing held on December 13, 1989, the then adult daughter was deposed and examined at length with respect to when the illicit behavior took place, but she was unable to fix exact dates. At the December 13 hearing, Yzaguirre's attorney sought a more definite statement of the times when the crimes were committed. The state, in reliance upon the daughter's deposition, contended that the state had "done all it can to narrow the time frames within the charges." See State v. Belton, 468 So.2d 495 (Fla. 5th DCA 1985).
Based upon the record before us, dismissal of the amended information can rest only upon a finding that the state, contrary to its representations, failed to exhaust avenues of inquiry which may have produced more precise dates identifying the periods of Yzaguirre's alleged criminal conduct. See Knight v. State, 506 So.2d 1182 (Fla. 5th DCA 1987). "It is proper for the trial court to dismiss an information on the basis of time frame specificity when the state had the ability to be more specific but failed to do so." State v. Jones, 539 So.2d 535, 537 (Fla. 3d DCA 1989).
In reaching our resolution of this matter, we are not unmindful that our supreme court has determined that "time is not ordinarily a substantive part of an indictment or information and there may be a variance between the dates proved at trial" and those that are...
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