UDELL SHIRLEY STEVENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stevens was charged with possession of a firearm by a convicted felon. After a search warrant listing a ".38 Smith & Wesson" revolver, the state initially charged him with possessing that weapon but later sought to amend the charge to a ".38 Dan Wesson." When the trial court denied the amendment, the state nolle prossed the first charge and filed a second information for the Dan Wesson revolver. Stevens appealed the denial of his motions to suppress, for discharge, and to dismiss.
The court affirmed all of the trial court's rulings. A technical error in describing the firearm in the search warrant is not automatically fatal to the warrant's validity. Stevens's waiver of speedy trial for the first charge constituted a waiver for the second charge if both arose from the same criminal conduct, or alternatively, the arrest on the first charge did not constitute arrest on the second charge, either way avoiding a speedy trial violation. Stevens is estopped from arguing the gun description change was immaterial after opposing the amendment himself, precluding a double jeopardy defense.
[1] A technical error in the description of an item in a search warrant is not automatically fatal to its validity.
[2] A defendant who argues against amending an information to correct a factual discrepancy is estopped from later claiming the discrepancy was immaterial for double jeopardy…
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Join FLexlaw to unlock all legal intelligence“a technical error in a description is not automatically fatal to the validity of a search warrant”
Establishes the standard for evaluating errors in search warrant descriptions; cited to Ventresca
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Join FLexlaw to unlock all legal intelligenceA police investigator observed Stevens in possession of a .38 revolver believed to be a Smith & Wesson and obtained a search warrant listing a ".38 Sm…
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COBB, Judge.
As the result of a police investigation into the sale of stolen property, a police investi gator saw the appellant in possession of a .38 revolver that the investigator thought was made by Smith & Wesson. The investigator signed an affidavit in support of a search warrant that included a .38 Smith & Wesson revolver in the list of items sought to be seized. The search warrant reflected the items to be seized in the manner that they were listed in the affidavit.
As a result of the search and seizure, the appellant was arrested and charged by an Information with possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1977), in that he had a .38 Smith & Wesson revolver on September 1,1978. Appellant requested a continuance and waived his right to a speedy trial pursuant to Florida Rule of Criminal Procedure 3.191.
The case came up for trial. After the jury was sworn in, the state moved to amend the information to reflect that the revolver involved was actually a .38 Dan Wesson. The trial court denied the motion. But see Lackos v. State, 326 So. 2d 220 (Fla. 2d DCA 1976); Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978), cert. den., 367 So. 2d 1124 (Fla. 1979); Richardson v. State, 251 So. 2d 570 (Fla. 4th DCA 1971). The state subsequently nolle prossed that charge.
Appellant was then charged by a second Information with possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1977), in that he had a .38 Dan Wesson revolver on September 25, 1978. Appellant filed a motion to suppress the evidence, a motion for discharge, and a motion to dismiss. The trial court denied all three motions. Appellant pled nollo contendere, specifically reserving his right to appeal the trial court’s rulings on those motions. The trial court adjudicated appellant guilty as charged in the second information.
Appellant’s motion to suppress was based on the fact that the search warrant listed the .38 Dan Wesson revolver as a .38 Smith & Wesson revolver. However, a technical error in a description is not automatically fatal to the validity of a search warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Rytman, 475 F. 2d 192 (5th Cir. 1973).
Appellant’s motion for discharge alleged a violation of Florida’s speedy trial rule. Appellant argues that the speedy trial time on the charge contained in the second information was started by his arrest on the charge contained in the first information. However, either the two charges arose from the same criminal conduct or episode or else they did not. If they did, then appellant’s waiver of speedy trial for the first charge was also a waiver for the second charge. State v. Boyd, 368 So. 2d 54 (Fla. 2d DCA 1979); Homer v. State, 358 So. 2d 1176 (Fla. 3d DCA 1978); State v. Luck, 336 So. 2d 464 (Fla. 4th DCA 1976). If they did not, then the arrest of the appellant on the first charge did not constitute his arrest on the second charge. Either way, there was no violation of the speedy trial rule.
Appellant’s motion to dismiss alleged a double jeopardy violation in that the second charge was really for the same offense as the first charge. Since appellant previously argued against allowing the state to amend its information to change Smith & Wesson to Dan Wesson, he is now estopped from arguing that such a change was immaterial. State v. Beamon, 298 So. 2d 376 (Fla. 1974), cert. den., 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975).
Accordingly, we AFFIRM.
DAUKSCH, C. J., and SHARP, J., concur.
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Udell Shirley Stevens, Jr. v. State, 409 So. 2d 1051 (Fla. 1982)…Fifth District’s decision in the present case, and we disapprove the Third District’s decision in Ledee. It is so ordered. SUNDBERG, C. J., and ADKINS, BOYD and McDONALD, JJ., concur. . This conviction was subsequently affirmed. Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980).…
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State v. Katz, 402 So. 2d 1184 (Fla. 1981)…dant had prepared his defense. Beamon teaches that a defendant under circumstances such as these is estopped to suggest that the variance which was material enough for acquittal is nonetheless immaterial for a new charge. See also Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980); State v. Mayor, 378 So. 2d 1324 (Fla. 3d DCA 1980). That is the rule we now reiterate and apply to Katz and Wither-spoon. The district court decisions are quashed, and these causes are remanded to the district court of appeal w…
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State v. DeSIMONE, 386 So. 2d 283 (Fla. 4th DCA 1980)…out the accused’s consent or fault. In State v. Luck, 336 So. 2d 464 (Fla. 4th DCA 1976), we similarly applied a waiver of the rule’s limitations of time to an amended information arising out of the same criminal episode. See also, Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980); State v. Corlew, 382 So. 2d 787 (Fla. 2d DCA 1980); Homer v. State, 358 So. 2d 1176 (Fla. 3d DCA 1978), cert. denied, 364 So. 2d 886 (Fla.1978). We view the filing of the information in a separate case, per se, insufficient to…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- United States v. Ventresca, 380 U.S. 102 (U.S. 1965)
- Raven v. United States, 419 U.S. 1124 (U.S. 1975)
- State v. Beamon, 298 So. 2d 376 (Fla. 1974)
- Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978)
- State v. Luck, 336 So. 2d 464 (Fla. 4th DCA 1976)
- Hernandez v. Metro. Dade Cnty., 358 So. 2d 1176 (Fla. 3d DCA 1978)
- Homer v. State, 358 So. 2d 1176 (Fla. 3d DCA 1978)
- State v. Boyd, 368 So. 2d 54 (Fla. 2d DCA 1979)
- Lackos v. State, 326 So. 2d 220 (Fla. 2d DCA 1976)
- Richardson v. State, 251 So. 2d 570 (Fla. 4th DCA 1971)