GREGORY ISOM, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gregory Isom appeals his conviction for robbery and aggravated battery, and an order revoking his probation. The Florida District Court of Appeal affirmed the convictions and probation revocation, but struck one ground for revocation based on an unproven allegation.
The court affirmed the convictions and probation revocation, but modified the probation revocation order by striking the ground based on the alleged robbery of Willie Daniels, which was not proven by evidence. The date variance did not require acquittal where defendant was on notice and showed no prejudice. The evidence was sufficient to sustain the robbery conviction.
[1] A variance between the date of a crime alleged in an information and the date testified to by a victim does not warrant a judgment of acquittal where the defendant had pr…
[2] Evidence is sufficient to sustain a robbery conviction if it meets the applicable legal standard.
Previewing 2 of 4 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“The defendant in the trial court filed no bill of particulars; he was on notice long before the trial of the two-day discrepancy in the date and he demonstrated no prejudice.”
Establishes that a minor date variance in an information does not require acquittal absent prejudice and proper objection procedures.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIsom was charged with robbery and aggravated battery by two-count information. A jury found him guilty on both counts and he was sentenced accordingly…
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PER CURIAM.
The appellant appeals his conviction of robbery and aggravated battery, and an order revoking probation.
The appellant was charged by a two-count information with the crime of robbery and aggravated battery. The jury returned a verdict of guilty on both counts, entered a judgment and conviction and sentenced him accordingly. The trial court also revoked his probation, which he was serving pursuant to a prior conviction. This appeal ensued.
The appellant contends the trial court erred in denying a judgment of acquittal because of a variance between the date set forth in the information upon which the alleged crime occurred and that as testified to by the victim. The defendant in the trial court filed no bill of particulars; he was on notice long before the trial of the two-day discrepancy in the date and he demonstrated no prejudice. Therefore, we find no error in this ruling by the trial judge. Howlett v. State, 260 So. 2d 878 (Fla. 4th DCA 1972); State v. Beamon, 298 So. 2d 376 (Fla.1974); Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978); Hoffman v. State, 372 So. 2d 533 (Fla. 4th DCA 1979); State v. Belien, 379 So. 2d 446 (Fla. 3d DCA 1980).
The appellant also contends the evidence was insufficient to sustain the robbery conviction. We find no merit in this point. DeLaCova v. State, 355 So. 2d 1227 (Fla. 3d DCA 1978); Daley v. State, 374 So. 2d 59 (Fla. 3d DCA 1979).
Appellant next contends the trial court erred in revoking his probation. We find no merit in this contention, except in one particular hereinafter referred to. The affidavit of probation violation was re-filed after an original one was dismissed for lack of witnesses. The trial court indicated he was going to consider the matter at the time of the trial in chief. Counsel for the defendant in the trial court made no objections; acquiesced in the proceedings, and we find no error occurred. Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968); Fuller v. State, 294 So. 2d 367 (Fla. 3d DCA 1974); State v. Spratling, 336 So. 2d 361 (Fla.1976); Hobbs v. State, 378 So. 2d 321 (Fla. 2d DCA 1980). However, we find the trial court erred in basing one of its grounds for revocation because of an alleged robbery of one Willie Daniels. This was an allegation of the re-filed affidavit of probation violation, but was not proved by the evidence.
Therefore, so much of the order revoking probation that found a violation of the terms of the probation in regard to the robbery of Willie Daniels be and the same is hereby stricken. See: Hobbs v. State, supra.
Affirmed as modified.
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Cited By
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Taylor v. State, 436 So. 2d 124 (Fla. 3d DCA 1982)…anel decision is at least disharmonious, if not in actual conflict, with the rules that (a) a variance between what is alleged in the charging document and the proof at trial is immaterial where there is no prejudice to the defendant, Isom v. State, 387 So. 2d 529 (Fla. 3d DCA 1980); Sharp v. State, 328 So. 2d 503 (Fla. 3d DCA 1976); and (b) an amendment to an information or a statement of particulars is permitted where defendant is aware that the State’s proof would relate to the date set forth in the amendm…
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Colon v. State, 898 So. 2d 1203 (Fla. 2d DCA 2005)…s battery but remand with directions that the court delete the remaining grounds from the- revocation order because there was no evidence to support these additional grounds. See Hobbs v. State, 378 So. 2d 321, 322 (Fla. 2d DCA 1980); Isom v. State, 387 So. 2d 529, 530 (Fla. 3d DCA 1980). DAVIS and KELLY, JJ., Concur.…
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Ponce v. State, 700 So. 2d 175 (Fla. 3d DCA 1997)…PER CURIAM. Affirmed. See Isom v. State, 387 So. 2d 529 (Fla. 3d DCA 1980); Franklin v. State, 356 So. 2d 1352 (Fla. 2d DCA 1978); Simmons v. State, 287 So. 2d 720 (Fla. 3d DCA), writ discharged, 305 So. 2d 178 (Fla.1974); Smith v. State, 292 So. 2d 69 (Fla. 3d DCA), cert. denied, 297 So. 2d 570 (Fla.197…
Authorities Cited (11 total)
- State v. Beamon, 298 So. 2d 376 (Fla. 1974)
- Weinstein v. Heyman, 379 So. 2d 446 (Fla. 3d DCA 1980)
- State v. Spratling, 336 So. 2d 361 (Fla. 1976)
- LEE v. State, 260 So. 2d 878 (Fla. 1st DCA 1972)
- DE LA Cova v. State, 355 So. 2d 1227 (Fla. 3d DCA 1978)
- Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968)
- Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978)
- Hoffman v. State, 372 So. 2d 533 (Fla. 4th DCA 1979)
- Carlton O. Daley v. State, 374 So. 2d 59 (Fla. 3d DCA 1979)
- Fuller v. State, 294 So. 2d 367 (Fla. 3d DCA 1974)