WILLIAM S. HART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hart was convicted of corruption by threat under Florida Statute § 838.021 for threatening to harm a public officer. Hart appealed arguing the information charged him with harming rather than threatening the officer, but the court affirmed because Hart failed to timely raise this objection at trial and was not prejudiced by any alleged ambiguity in the charging document.
The conviction is affirmed because Hart waived any challenge to the information by failing to timely file a motion for particulars, motion to dismiss, or other objection before trial conclusion. Additionally, Hart suffered no prejudice because the case was actually tried on the threatening harm theory, and Hart did not object to the jury instruction on that basis.
[1] A defendant waives the right to challenge an information for incompleteness or imprecision by failing to raise the objection in the trial court before the conclusion of t…
[2] A defendant must file a motion for a bill of particulars if an information fails to inform them of the particulars of the offense sufficient to prepare a defense.
Previewing 2 of 5 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“"where the charging allegations are merely incomplete or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defense, and it cannot be raised for the first time on appeal."”
Establishes the procedural rule that Hart waived his challenge to the information by failing to raise it before or during trial.
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Join FLexlaw to unlock all legal intelligenceHart was charged with corruption by threat under F.S. § 838.021 for threatening to "get" a police officer and conduct a cross burning with gunfire at …
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STONE, Chief Judge.
We affirm Appellant’s conviction for corruption by threat under section 838.021, Florida Statutes (1997).
Appellant argues that the information actually charged Appellant with harming the officer in question, rather than threatening to harm him, and because there was no evidence that Appellant physically harmed the officer, he should have been acquitted.
Section 838.021 provides that an accused can be convicted of “corruption by threat” in one of two ways; either unlawfully harming a public servant or unlawfully threatening to harm a public servant. The information under which Appellant was charged states, “William Hart ... did unlawfully harm a public servant, to-wit... .William Hart did threaten to get said officer and conduct a cross burning with plenty of rounds (bullets) at said officer’s house if [the officer] placed defendant under arrest, ... contrary to ... F.S. 838.021(l)(a), (3)(a).”
Appellant asserts that the way the information is worded, it charged him only with harming the officer, rather than threatening harm, notwithstanding the wording in the “to wit” clause.
However, Appellant never properly presented this argument to the trial court. Florida Rule of Criminal Procedure 3.140(n) provides that if a defendant believes that the information “fails to inform [him] of the particulars of the offense sufficient to enable him to prepare his defense,” the court may order the prosecuting attorney to furnish a statement of particulars.
However, Appellant failed to file a motion for such. Neither did Appellant file a motion to dismiss, or in any other way raise this objection to the court before the conclusion of the trial. “[W]here the charging allegations are merely incomplete or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defense, and it cannot be raised for the first time on appeal.” Carver v. State, 560 So. 2d 258, 260 (Fla. 1st DCA 1990); see also Ross v. State, 664 So. 2d 1004, 1008 (Fla. 4th DCA 1995) (objection to variance between the allegations in indictment and evidence presented at trial must be raised to the trial court either through a motion to dismiss or a judgment of acquittal in order to preserve the issue for appellate review).
Furthermore, Appellant was not prejudiced or embarrassed at trial by any ambiguity, as the record is clear that the case was tried on, and Appellant defended himself against, a charge of threatening harm. See State v. Dell'Orfano, 651 So. 2d 1213 (Fla. 4th DCA 1995) (information only legally insufficient if it is so vague or indefinite as to mislead or embarrass accused, or subject him or her to multiple prosecution). We also note that Appellant had no objection to the court’s instruction to the jury that they could find Appellant guilty of corruption by threat if he “threatened unlawful harm.” charging the jury on finding guilt of corruption by threat by threatening unlawful harm. We, therefore, affirm Appellant’s conviction and sentence.
DELL and STEVENSON, JJ„ concur.
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Pena v. State, 901 So. 2d 781 (Fla. 2005)…stinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense. See, e.g., Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998). The failure to allege that Pena was eighteen at the time of the offense did not render the indictment so vague, inconsistent, and indefinite as to mislead Pena or embarrass him in the preparation of his defense, or expose him t…
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Earvin Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016)…al in the absence of an objection or other challenge in the trial court. Roberts v. State, 374 So. 2d 1000 (Fla. 3d DCA 1979); Ingraham v. State, 32 So. 3d 761 (Fla. 2d DCA 2010); McMillan v. State, 832 So. 2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998); Carver v. State, 560 So. 2d 258 (Fla. 1st DCA 1990). . This is consistent with Florida Rule of Criminal Procedure 3.140(o ), which provides: (o) Defects and Variances. No indictment or information, or any count thereof, shall…
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Geiser v. State, 83 So. 3d 834 (Fla. 4th DCA 2011)…e charging allegations are merely incomplete or imprecise, the failure to timely file a motion to dismiss under [Florida Rule of Criminal Procedure] 3.190(c) waives the defense, and it cannot be raised for the first time on appeal.’ ” Hart v. State, 761 So. 2d 334, 335 (Fla. 4th DCA 1998) (quoting Carver v. State, 560 So. 2d 258, 260 (Fla. 1st DCA 1990)). Therefore, out of necessity, Geiser argues that the use of the phrase “on one or more occasions” in the information was fundamental error. We disagree. In…
Previewing 3 of 53 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Dell'orfano, 651 So. 2d 1213 (Fla. 4th DCA 1995)
- Ross v. State, 664 So. 2d 1004 (Fla. 4th DCA 1995)
- Carver v. State, 560 So. 2d 258 (Fla. 1st DCA 1990)