Taylor v. State, 95-1360
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | MICKLE |
| Citation | 672 So.2d 580 |
| Parties | 21 Fla. L. Weekly D955 William Donald TAYLOR, Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. 95-1360,95-1360 |
| Decision Date | 16 April 1996 |
Page 580
v.
STATE of Florida, Appellee.
First District.
Rehearing Denied May 3, 1996.
Page 581
An appeal from the Circuit Court for Washington County; Don T. Sirmons, Judge.
Nancy Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
MICKLE, Judge.
William Donald Taylor (Appellant) appeals a judgment and sentence on the grounds 1) that the evidence is legally insufficient to support conviction in Count I, 2) that the trial court erroneously adjudicated him guilty of a crime (Count II) of which the jury had acquitted him, and 3) that the written order setting forth various costs erroneously includes certain costs that were not orally pronounced. We affirm the judgment and sentence in Count I, reverse the conviction in Count II, and direct the trial court to strike those costs in the written order that were not orally pronounced.
In Count I, the state charged Appellant with aggravated battery by use of a deadly weapon, "a tire tool." Appellant claims that the trial court should have granted his motion for judgment of acquittal, which he made at the end of the state's case and renewed at the end of all evidence. On review, we must resolve the evidentiary conflicts and all inferences therefrom in favor of the ruling. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The state's witnesses testified that late one night while Appellant resided at, and Frank Smith visited, the residence of Appellant's brother (Andrew) and Andrew's wife (Lillian), Appellant intentionally struck Smith on top of the head with a crowbar. The wound split open the victim's head, caused him to bleed and lose consciousness, and necessitated treatment at a hospital. The jury convicted Appellant as charged in Count I.
Appellant offers two grounds for reversal based on the evidence. First, he argues that the reference in the information to use of "a tire tool" varies from the proof at trial that indicated that Appellant used a crowbar. While proof of a crime separate and distinct from the crime charged can constitute a fatal variance, see Rose v. State, 507 So.2d 630, 632 (Fla. 5th DCA 1987), not every variance between allegation and proof is fatal. Donaldson v. State, 356 So.2d 351, 352 (Fla....
To continue reading
Request your trial
-
Nardone v. State, 4D00-3267.
...or 798 So.2d 873 (2) any instrument likely to cause great bodily harm because of the way it is used during a crime. Taylor v. State, 672 So.2d 580, 582 (Fla. 1st DCA 1996). Here, the item used in the assault was a strip of aluminum torn from the bottom of a planter. Because it was not desig......
-
Morris v. State, 97-2946.
...great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime. Taylor v. State, 672 So.2d 580, 582 (Fla. 1st DCA 1996)(citing D.C. v. State, 567 So.2d 998,1000 (Fla. 1st DCA Whether appellant's dog was a deadly weapon under the circum......
-
Ortiz v. State, 2D13–5719.
...to hit the victim in the face, causing a facial fracture, numbness, and a great deal of pain around the eye and face); Taylor v. State, 672 So.2d 580, 582 (Fla. 1st DCA 1996) (holding that the evidence was sufficient to support a finding that a crowbar was used as a deadly weapon where the ......
-
EMM v. State, 3D02-2596.
...State, 698 So.2d 555 (Fla. 2d DCA 1997), review granted, 701 So.2d 868 (Fla.1997), approved, 703 So.2d 1062 (Fla. 1997); Taylor v. State, 672 So.2d 580 (Fla. 1st DCA 1996). See generally D.C. v. State, 567 So.2d 998 (Fla. 1st DCA 1990). Compare Forchion v. State, 214 So.2d 751 (Fla. 3d DCA ......