GARY L. DILWORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Dilworth appealed his unemployment fraud conviction, challenging the trial court's denial of his motion to dismiss an information charging him with fraud. The appellate court agreed that the information was fatally vague and failed to provide adequate notice of the specific acts constituting the offense, holding that a statement of particulars cannot cure a fundamentally defective charging document.
The court held that an information must descend to particulars and state the specific circumstances making up the offense, not merely use generic statutory language. A statement of particulars is not part of the pleadings and cannot cure a fundamentally defective information that fails to give a defendant adequate notice of the charges.
[1] An information that tracks statutory language but fails to state specific acts constituting the offense is fatally vague.
[2] A criminal information must descend to particulars and cannot merely charge an offense in generic statutory terms.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where the definition of an offence whether by a rule of the common law or by statute, includes generic terms (as it necessarily must) it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species — it must descend to particulars.”
Establishes the core principle that generic statutory language is insufficient; the charge must specify the particular circumstances of the offense
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Join FLexlaw to unlock all legal intelligenceDilworth was charged with 15 counts of unemployment fraud. The information tracked the statutory language but failed to specify any of the particular …
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PER CURIAM.
Gary Dilworth, appeals his conviction for unemployment fraud urging that the trial court erred in denying his motion to dismiss the information. We agree and reverse.
Mr. Dilworth moved to dismiss a 15 count information charging him with unemployment fraud, on the grounds that it was fatally vague. The information tracked the statutory language, but failed to state any of the specific acts constituting the fraud. The trial judge agreed that the information was deficient but ruled that it could be cured by a statement of particulars and denied the motion to dismiss. Mr. Dilworth pleaded nolo contendere to count I, reserving his right to appeal.
Although it is generally true that an indictment or information charging a crime substantially in the language of a statute is sufficient, this is not true when the statutory language does not adequately state the particular circumstances making up the offense. Mills v. State, 58 Fla. 74, 51 So. 278 (1910). The Florida Supreme Court in Rosin v. Anderson, 155 Fla. 673, 21 So. 2d 143, 144 (1945), stated the rule thusly:
[Wjhere the definition of an' offence whether by a rule of the common law or by statute, includes generic terms (as it necessarily must) it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species — it must descend to particulars.
Accord State v. Cadieu, 353 So. 2d 150 (Fla. 1st DCA 1977).
A statement of particulars is not part of the pleadings in a criminal case, Smith v. State, 253 So. 2d 465 (Fla. 1st DCA 1971) and a statement of particulars cannot cure an information which is fundamentally defective in failing to give a defendant adequate notice of the charges against which he must defend. Black v. State, 360 So. 2d 142 (Fla. 2d DCA 1978), cert. granted (Fla.1978), Kelly v. State, 92 So. 2d 172 (Fla.1957). The purpose of a bill of particulars is not to cure an information defective on its face, but to provide the defendant with greater detail of an accusation properly charged. Middleton v. State, 74 Fla. 234, 76 So. 785 (1917).
It is the state’s duty to properly charge a defendant with a crime, Fla.R. Cnm.P. 3.140(d) and a defendant is not required to request a statement of particulars. Cadieu, supra.
Reversed and remanded for proceedings consistent with this opinion.
ROBERT P. SMITH, Jr., and SHIVERS, JJ., concur. BOOTH, J., dissents.
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State v. Dilworth, 397 So. 2d 292 (Fla. 1981)…McDONALD, Justice. This case is before us on a petition for writ of certiorari to review a decision of a district court, reported at 381 So. 2d 1125 (Fla. 1st DCA 1979). Because that court’s decision conflicts with Leeman v. State, 357 So. 2d 703 (Fla.1978), and Johnson v. State, 351 So. 2d 10 (Fla.1977), we have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972). We disapprove the district cour…
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State v. Robson, 397 So. 2d 768 (Fla. 1st DCA 1981)…, or with intent to appropriate the property to their own use or to the use of any person not entitled thereto, contrary to the provisions of Section 812.014, Florida Statutes. The trial judge found that dismissal was required by Dilworth v. State, 381 So. 2d 1125 (Fla. 1st DCA 1979), which held that the information charging unemployment fraud in the language of the statute1 was insufficient because it failed to set out the specific acts constituting the fraud. Subsequent to the trial judge’s dismissal in th…
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Authorities Cited
- Mills v. State, 58 Fla. 74 (Fla. 1909)
- Middleton v. State, 74 Fla. 234 (Fla. 1917)
- Rosin v. Anderson, 155 Fla. 673 (Fla. 1945)
- Kelly v. The State of Fla. ex rel. Frank K. Leonard & R. R. Russell, 92 So. 2d 172 (Fla. 1956)
- Smith v. State, 253 So. 2d 465 (Fla. 1st DCA 1971)
- State v. Cadieu, 353 So. 2d 150 (Fla. 1st DCA 1977)
- Theron Black v. State, 360 So. 2d 142 (Fla. 2d DCA 1978)