Toussaint v. State, 4D99-0492.

Citation755 So.2d 170
Decision Date15 March 2000
Docket NumberNo. 4D99-0492.,4D99-0492.
PartiesElvestre TOUSSAINT, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Gentry Denise Benjamin, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, C.J.

This case involved the question of whether the amendment of an information to correct a clerical error that was brought to the attention of both the state and appellant by the court after the close of all of the evidence constitutes a violation of double jeopardy principles. We conclude that it does not and affirm.

The state's information charged as follows: "ELVESTRE TOUSSAINT, a person under eighteen years of age, did unlawfully commit sexual battery upon, ... T.R., a person less than twelve years of age ..., contrary to Florida Statute 794.011(2)(b)." (Emphasis added). At trial, the state established that appellant was 52 years old. Appellant made a general motion for a judgment of acquittal at the close of the state's case but it is apparent from the record that neither the state nor defense counsel noticed the fact that the information was in error as to the proper charge, namely a violation of section 794.011(2)(a), which crime is defined as a person over the age of 18 engaging in enumerated acts of sexual battery with a person under the age of twelve. As the court began to charge the jury, it noticed the discrepancy and called the lawyers to a sidebar conference. The state then orally moved to amend the information. The court granted the motion over the defense objection, reasoning that the defendant was not prejudiced by the amendment since defense counsel did not even notice the error and did not rely on it in his defense.

It is well settled that "the state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant." State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989). See also Green v. State, 728 So.2d 779, 780 (Fla. 4th DCA 1999)("the key to whether it is error to permit amendment during trial is whether the defendant is thereby prejudiced.... The common thread discernable in this line of cases is that the amendment is permissible when it merely clarifies some detail of the existing charge and could not reasonably have caused the defendant any prejudice")(emphasis added) (citations omitted). Although this court has held that a defendant may be prejudiced where the elements of the crime after the information is amended are "obviously different" from the crime charged in the original information, see Washington v. State, 378 So.2d 852, 853 (Fla. 4th DCA 1979),

in this case the elements of the crime of sexual battery are the same under both statutes.

The issue in this case is whether the change of the age in the crime charged constitutes the charging of a different crime. We held in Jesus v. State, 565 So.2d 1361, 1363 (Fla. 4th DCA 1990), that "the offender's age is not an element of the crime of sexual battery. Section 794.011 refers to a person's age only in prescribing the means by which an offender should be punished." But see Baker v. State, 604 So.2d 1239, 1240 n. 3 (Fla. 3d DCA 1992)

. Since the age (and corresponding statute citation) was the only allegation changed in the amended information, it cannot be said that the amended complaint changed the "essential elements of the charged offense." Ingleton v. State, 700 So.2d 735, 739 (Fla. 5th DCA 1997),

rev. denied, 717 So.2d 532 (Fla.1998). See also Budd v. State, 477 So.2d 52, 53 (Fla. 2d DCA 1985)(defendant not prejudiced where State was allowed to amend information in a sexual battery case to add defendant's age). Because the elements were the same, the amended information did not place appellant in double jeopardy.

Appellant also raises as an evidentiary error the admission of Williams rule evidence, contending that the other acts were not sufficiently similar to justify their admission. See Williams v. State, 110 So.2d 654 (Fla.1959)

. Although we find that the issue was preserved, we find no error in the admission of these prior incidents, both of which involved this same victim. See, e.g., Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Smith v. State, 538 So.2d 66 (Fla. 1st DCA 1989); Gibbs v. State, 394 So.2d 231 (Fla. 1st DCA 1981).

We find that the issue regarding the introduction of the victim's prior consistent statement to the police was unpreserved. However, there was no error in any event because the statement was properly admitted to refute the implied charge of recent fabrication. See Belcher v. State, 646 So.2d 231, 233 (Fla. 5th DCA 1994)

.

Finally, appellant contends that the trial court...

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21 cases
  • State v. Johnston
    • United States
    • Washington Court of Appeals
    • October 25, 2007
    ...and state cases with regard to this issue. See, e.g., United States v. Kelly, 436 F.3d 992, 996 (8th Cir.2006); Toussaint v. State, 755 So.2d 170, 172 (Fla.Dist.Ct.App.2000), overruled on other grounds by Glover v. State, 863 So.2d 236 (Fla.2003); People v. Westpfahl, 295 Ill.App.3d 327, 33......
  • Hicks v. Tucker
    • United States
    • U.S. District Court — Middle District of Florida
    • February 23, 2015
    ...amend an information unless there is a showing of prejudice to the substantial rights of the defendant. Toussaint v. State, 755 So. 2d 170, 171 (Fla. 4th DCA 2000). The record shows that an amended information was filed on February 12, 2008 charging Petitioner with unlawful "sexual activity......
  • State v. D.A.
    • United States
    • Florida District Court of Appeals
    • September 22, 2006
    ...amended information charged a different (and, therefore, "new") crime. We conclude that he was. Our analysis begins with Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA), rev. denied, 776 So.2d 277 (Fla.2000). In Toussaint, the state incorrectly charged a 52 year-old adult as a person under......
  • Thach v. State
    • United States
    • Florida District Court of Appeals
    • September 24, 2020
    ...2002). Further, an amendment that substantively alters the elements of the crime charged is per se prejudicial. Toussaint v. State , 755 So.2d 170, 172 (Fla. 4th DCA 2000).Sexual battery is defined to mean "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or......
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