STATE OF FLORIDA, APPELLANT,
v.
LOUIS A. GARCIA, APPELLEE
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Florida appeals a trial court's dismissal of an information charging Louis Garcia with three counts of sexual battery and one count of lewd and lascivious conduct. The court affirmed the dismissal, holding that the information was unconstitutionally vague because it alleged crimes occurring over a two-year period without adequate specificity, despite the state's apparent ability to narrow the timeframe.
The court affirmed the dismissal, holding that the two-year timeframe was impermissibly vague. Although an information need not specify the exact date if unknown and may allege crimes occurring between two dates, the state must specify the date and material facts as definitely as possible. Where the state has the ability to allege a narrower timeframe but fails to do so, the information is properly dismissed.
[1] A criminal information is subject to dismissal if it is so vague, indistinct, or indefinite as to mislead or embarrass the defendant in the preparation of their defense o…
[2] When a court orders a prosecuting attorney to furnish a statement of particulars, such statement must specify as definitely as possible the place, date, and all other mat…
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Join FLexlaw to unlock all legal intelligence“so vague, indistinct or indefinite as to mislead or embarrass the Defendant in the preparation of his defense or to expose him after conviction or acquittal to substantial danger of a new prosecution for the same offenses and is therefore violative of Rule 3.140, Rules of Criminal Procedure.”
The trial court's finding that established the legal basis for dismissing the information as constitutionally defective.
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Join FLexlaw to unlock all legal intelligenceGarcia was charged with sexually abusing J.W., an eight-year-old female, between January 1, 1984 and January 15, 1986. The state represented at the di…
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SCHEB, Acting Chief Judge.
The state appeals the trial court’s order dismissing an information charging the defendant with three counts of sexual battery and one count of lewd and lascivious conduct. We affirm.
The first three counts of the state’s information charged that “LOUIS A. GARCIA, between the 1st day of January, 1984 and the 15th day of January, 1986 in the county of Hillsborough, and State of Florida, being then eighteen (18) years of age or older, did then and there unlawfully and feloniously commit sexual battery upon J.W., a person eleven (11) years or younger”:
(Count I) by penetrating the vagina of J.W. with his penis or by placing his penis in union with the vagina of said J.W.;
(Count II) by penetrating the vagina of J.W. with his tongue or by placing his tongue in union with the vagina of said J.W.;
(Count III) by penetrating the vagina of J.W. with his finger or fingers.
The remaining count charged that Garcia:
(Count IV) between the 1st day of January, 1984 and the 15th day of January, 1986 ... did handle, fondle, or make an assault upon J.W., a child under fourteen (14) years of age, in a lewd, lascivious or indecent manner, by handling, fondling or otherwise touching the vaginal area or breasts of J.W. and/or encouraging or enticing J.W. to touch or fondle LOUIS A. GARCIA’S genital area.
At the defendant’s request the state provided a statement of particulars; however, the court found that it did not narrow the time period during which the alleged crimes occurred. In its amended order dismissing the information the court ruled that it was:
so vague, indistinct or indefinite as to mislead or embarrass the Defendant in the preparation of his defense or to expose him after conviction or acquittal to substantial danger of a new prosecution for the same offenses and is therefore violative of Rule 3.140, Rules of Criminal Procedure.
The state contends that the trial court erred in dismissing the information when the state could not, because of the witness, narrow the alleged time frame. We disagree.
When a court orders the prosecuting attorney to furnish a statement of particulars, such statement shall specify as definitely as possible the place, date, and all other material facts that are specifically requested and known to the prosecuting attorney. Fla.R.Crim.P. 3.140(n). Here the trial judge, in granting the defendant’s motion to dismiss, found that the state could be “substantially more specific than it has been in either the Information or the Bill of Particulars responded to which simply repeats the date set forth in the Information.”
At the hearing on the defendant’s motion to dismiss, the state represented that the alleged sexual abuse of the victim, an eight-year-old female, had begun a few days after the defendant moved in with the victim and her mother in the beginning of January 1984. The prosecutor stated that the sexual abuse ended when the crime was reported to the mother in mid-January 1986. The record does not disclose the statement of particulars. We agree with the trial judge that the state appears to have the ability to allege, at least in two of the counts, a narrower time frame.
We think that the state’s reliance on State v. Belton, 468 So. 2d 495 (Fla. 5th DCA 1985) and State v. Bandi, 338 So. 2d 75 (Fla. 4th DCA 1976) is misplaced. In Belton, the trial court dismissed an information because the state failed to specify within a twenty-four hour period when the offense had been committed. The fifth district held that where the state advised the court that it could not narrow the date as closely as the court required but could narrow it to a six-day period, the state had satisfied its obligation of stating as definitely as possible the date of the offense.
In Bandi, the state charged the defendant with assault on a nine-year-old between April 1, 1974, and February 16, 1975. Despite the fact that a statement of particulars narrowed the date of the offense to a period of three months, the trial court dismissed the information. The fourth district found that the state had complied with the requirements of the statement of particulars and the requirements of due process and reversed the dismissal of the information.
We recognize that it is not necessary that an information specify the exact date of the offense, if such date is not known. Lightbourne v. State, 438 So. 2d 380 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). Moreover, an information may properly allege a crime occurring between two dates. Skipper v. State, 114 Fla. 312, 153 So. 853, appeal dismissed, 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631 (1934). However, we do not think the court erred in dismissing the information in the case before us since the period of the alleged offense spans more than two years and it appears that the state had the ability to allege the time frame of the offenses with more specificity but failed to do so.
We realize the seriousness of the allegations against the defendant. Therefore, our affirmance is without prejudice to the state to file a new information alleging the charges against the defendant with some reasonable specificity, provided that no affirmative bar to the prosecution exists. See State v. Davis, 243 So. 2d 587 (Fla.1971).
Affirmed.
SCHOONOVER and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Jones, 539 So. 2d 535 (Fla. 3d DCA 1989)…court to dismiss an information on the basis of time frame specificity when the state had the ability to be more specific but failed to do so. Two cases involving charges of sexual battery against young children are illustrative. In State v. Garcia, 511 So. 2d 714 (Fla. 2d DCA 1987), the second district held that charges of sexual battery upon a young child were properly dismissed where the state was found to have the ability to allege within a narrower time frame but did not. In that case, there was no findi…
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State v. Dell'orfano, 592 So. 2d 338 (Fla. 4th DCA 1992)…e was without prejudice to the right of the state to obtain a new indictment upon more certain time periods. The trial court in this case relied upon DeBianchi, and also considered Goble v. State, 535 So. 2d 706 (Fla. 5th DCA 1988), State v. Garcia, 511 So. 2d 714 (Fla. 2d DCA 1987), and Knight v. State, 506 So. 2d 1182 (Fla. 5th DCA 1987), in concluding that a dismissal of an information under these circumstances is required. Although we would not normally go behind the DeBianchi opinion to review the record…
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State v. Debianchi, 538 So. 2d 984 (Fla. 4th DCA 1989)…ANSTEAD, Judge, concurring specially. I agree that the trial court’s action was within the discretion outlined in Knight v. State, 506 So. 2d 1182 (Fla. 5th DCA 1987) and State v. Garcia, 511 So. 2d 714 (Fla. 2d DCA 1987).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lightbourne v. State, 438 So. 2d 380 (Fla. 1983)
- Griffin v. Texas, 465 U.S. 1051 (U.S. 1984)
- Kinnett Dairies, Inc. v. Dairymen, Inc., 465 U.S. 1051 (U.S. 1984)
- State v. Davis, 243 So. 2d 587 (Fla. 1971)
- Skipper v. State, 114 Fla. 312 (Fla. 1934)
- State v. Belton, 468 So. 2d 495 (Fla. 5th DCA 1985)
- State v. Norbert Lee Bandi, 338 So. 2d 75 (Fla. 4th DCA 1976)
- Secor v. Fulton, 293 U.S. 517 (U.S. 1934)