OTIS NIKI JACOB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a material variance between the victim's name in the information and the evidence presented at trial constitutes fundamental error, requiring reversal of the convictions.
[1] A material variance between the name of the victim alleged in an information and the name of the victim proved at trial is fatal to a conviction.
[2] A conviction based on evidence that does not conform to the allegations in the charging information constitutes fundamental error, even if no objection was made at trial.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of robbery and battery against 'James' Neeley. However, the state's evidence and arrest affidavit referred to the victim a…
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BLUE, Judge.
Otis Niki Jacob appeals his convictions for robbery and battery pursuant to an information that charged him with committing these crimes against James Neeley. Because the evidence did not conform to the allegations in the information, we reverse.
At trial, the state called two witnesses. The alleged victim was not called, did not testify, and was unknown to the state’s witnesses. A police officer testified that he interviewed “Joseph” Neeley and, based on what Neeley said, the officer concluded that a robbery had occurred. The criminal arrest affidavit contained in the record lists the complainant as “Joseph L.” Neeley. The information, however, charged Jacob with crimes committed against “James” Neeley.
The record does not contain any explanation for the difference in names. As explained in Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987), “An attempted robbery of ... any one person is a distinctly different factual event and crime from an attempted robbery of ... any other person.” 507 So. 2d at 631 (punctuation omitted). Cf. Raulerson v. State, 358 So. 2d 826, 829 (Fla.) (stating that a “material variance between the name alleged, and that proved, is fatal” but taking judicial notice that Mike is a common form of Michael), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). Thus, Jacob was convicted of a different crime than that charged in the information. Although no objection was made at trial, this constitutes fundamental error. Rose.
We can discern no evidence in the record linking the names Joseph L. and James. Despite the same last name, we are unable to infer that these are two names for the same person. Thus, Jacob remains at jeopardy for any crimes against Joseph L. Neeley. If we affirmed these convictions and the victim’s name was, in fact, Joseph, then Jacob could be convicted twice for the same offenses.
Reversed and remanded with instructions to discharge the defendant Jacob on the charges of robbery and battery of James Neeley.
SCHOONOVER, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holborough v. State, 103 So. 3d 221 (Fla. 4th DCA 2012)…an unnamed person. Id. (citations omitted). More recent cases involving crimes against persons have applied the rule of Jacobs and Smith. See, e.g., Lattimore v. State, 202 So. 2d 3 (Fla. 3d DCA 1967) (involving aggravated assault); Jacob v. State, 651 So. 2d 147 (Fla. 2d DCA 1995) (involving robbery and battery). In this case, without the officer’s hearsay testimony, there was no proof as to the identity of the victim, an essential element of the crime of battery. Had the trial court ruled correctly on the…
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Corbett v. State, 113 So. 3d 965 (Fla. 2d DCA 2013)…ng the name of the victim was not fatal; “there could be no doubt as to the true identity of the victim” because the victim himself testified at trial, and there was no “possibility of a second prosecution for the same offense”); cf. Jacob v. State, 651 So. 2d 147, 148 (Fla. 2d DCA 1995) (where information identified the victim as James Neeley, the arresting officer testified at trial that he interviewed a Joseph Neeley as the victim, and the victim did not testify at trial, court was “unable to infer that th…
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Brown v. State, 888 So. 2d 130 (Fla. 4th DCA 2004)…ges his appellate attorney provided ineffective assistance by failing to raise, on appeal, the fact the actual victim was named Keith Pope and thus, the convictions were unsupported by the evidence produced at trial. Brown relies on Jacob v. State, 651 So. 2d 147 (Fla. 2d DCA 1995), and to a lesser extent, Raulerson v. State, 358 So. 2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). We find Jacob to be factually distinguishable and instead rely upon the supreme court’s more rece…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McNair v. United States, 439 U.S. 959 (U.S. 1978)
- Raulerson v. State, 358 So. 2d 826 (Fla. 1978)
- Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987)