GLENN ELBERT GRISSOM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Grissom appeals his grand theft conviction, arguing that the charging document alleged theft of a 'cow' but the state proved taking of a 'male calf,' creating a material variance. The court affirmed, holding the variance immaterial because the defendant was not misled or prejudiced and faced no substantial risk of reprosecution.
The variance is immaterial and does not preclude conviction. A variance between allegations and proof is immaterial where the defendant was not misled, was not prejudiced in his defense, and does not face a substantial possibility of reprosecution for the same offense.
[1] A variance between the allegations in a charging document and the proof at trial is immaterial if it does not mislead the defendant or subject them to a substantial possi…
[2] A defendant is not misled or prejudiced by a variance between the charging document and the proof when the defendant admits the conduct and there is no dispute as to the…
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Join FLexlaw to unlock all legal intelligence“the proof at trial must substantially conform to the allegations of the charging document, in order that the defendant not be misled and thereby prejudiced, and to insure against reprosecution for the same offense”
States the general rule requiring conformity between allegations and proof
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with grand theft of a 'cow' based on an information. At trial, the state proved that appellant unlawfully took a male calf. Appe…
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WENTWORTH, Judge.
Appellant seeks review of a judgment of conviction and sentence for the offense of grand theft, upon an information alleging the unlawful taking of a “cow.” At trial the state proved the unlawful taking of a male calf; appellant contends that the proof at trial thus did not conform to the allegation of the charging document, so as to preclude conviction and sentence. We find that in the circumstances of this case the variance is immaterial, and we affirm the order appealed.
Of course, the proof at trial must substantially conform to the allegations of the charging document, in order that the defendant not be misled and thereby prejudiced, and to insure against reprosecution for the same offense. See, e. g., Robinson v. State, 69 Fla. 521, 68 So. 649 (1915); cf., Fla.R.Crim.P. 3.140(o). However, where a variance between the allegations and proof is not such as to have misled the defendant or subject him to a substantial possibility of reprosecution for the same offense, the variance is immaterial and does not preclude conviction. See Hagy v. State, 347 So. 2d 773 (Fla. 3d DCA 1977); Ricks v. State, 224 So. 2d 413 (Fla. 3d DCA 1969). In the circumstances of the present case appellant is not subjected to a substantial possibility of reprosecution, and it is clear that he was not misled or prejudiced in his defense: appellant admitted the “taking,” there was no dispute as to the animal taken, and appellant’s counsel repeatedly referred to the male calf as a “cow.” We therefore conclude that in this case the variance was immaterial and does not preclude conviction.
Appellant cites Higginbotham v. State, 78 Fla. 114, 82 So. 601 (1919), and Mobley v. State, 57 Fla. 22, 49 So. 941 (1909), but these authorities are unavailing in the present case. Neither Higginbotham nor Mobley involved circumstances similar to this case, and the decision in Mobley is expressly predicated upon a larceny statute which distinguishes “cow” and “steer;” the present theft statute, § 812.014, Florida Statutes, is dissimilar and without any such specification or distinction.
Accordingly, the order appealed is affirmed.
ERVIN and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Coleman v. State, 485 So. 2d 1342 (Fla. 1st DCA 1986)…to have misled the defendant or subjected him to a substantial possibility of reprose-cution for the same offense, the variance is immaterial and does not preclude conviction. Brownlee v. State, 427 So. 2d 1106 (Fla. 3d DCA 1983); Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981). In Brown-lee, a defendant was charged in one count of an information with display of a short barreled shotgun while committing a felony. He was convicted on evidence showing that he displayed or used a pistol while in the commis…
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Brownlee v. State, 427 So. 2d 1106 (Fla. 3d DCA 1983)…n 790.07(2) that the firearm used be described with particularity. The description of the firearm in the information was superfluous, and in the absence of a claim and showing of prejudice, the conviction will not be disturbed. See Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981) (indictment charging defendant with unlawful taking of cow contained immaterial variance from proof at trial showing defendant’s unlawful taking of male calf); Ricks v. State, 224 So. 2d 413 (Fla. 3d DCA 1969) (no fatal variance…
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Ross v. State, 664 So. 2d 1004 (Fla. 4th DCA 1995)…The proof at trial must substantially conform to the allegations of the indictment or information in order that the defendant not be prejudiced in the preparation of a defense or subject him to reprosecution for the same offense. Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981). However, an objection to a variance between the allegata and proba-ta must be raised to the trial court either through a motion to dismiss or a motion for judgment of acquittal. Where there is no objection in the trial court, th…
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
- Robinson v. State, 69 Fla. 521 (Fla. 1915)
- Mobley v. State, 57 Fla. 22 (Fla. 1909)
- Metro. Dade Cnty. v. Carter, 224 So. 2d 413 (Fla. 3d DCA 1969)
- Bass Higginbotham v. State, 78 Fla. 114 (Fla. 1919)
- Hagy v. State, 347 So. 2d 773 (Fla. 3d DCA 1977)