JACK JEAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2009-05-13
No. 4D07-5010
HAZOURI and MAY, JJ., concur.
11 So. 3d 421 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The appellate court affirmed a defendant's convictions for robbery with a firearm and aggravated assault with a firearm. The court held that the trial court did not err in allowing the state to amend the information to add a victim after jury selection, nor in imposing a mandatory minimum sentence for the firearm charge.


Holding

No, the trial court did not err in allowing the amendment because the defendant failed to show prejudice, and no, the trial court did not err in imposing the mandatory minimum sentence as the information alleged firearm possession and the jury found the defendant guilty as charged.


Headnotes

[1] A trial court does not abuse its discretion by allowing the state to amend an information during trial if the defendant cannot demonstrate prejudice to their substantial…

[2] A defendant's substantial rights are not prejudiced by an amendment to an information if their defense strategy remains the same regardless of the amendment.

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

Key Quotes

“the state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.”

This quote establishes the legal standard for amending an information during trial, which the court applied to find no error.

Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The appellant was charged with robbery and aggravated assault. The state moved to amend the robbery count to name an additional victim after jury sele…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
TAYLOR, J.

TAYLOR, J.

Appellant and a co-defendant were charged by information with robbery with a firearm (Count I) and aggravated assault with a firearm (Count II). In this appeal from his convictions and sentences on these charges, appellant argues that the trial court erred in allowing the state to amend the robbery count of the information after jury selection and in imposing a mandatory minimum three-year prison term on the aggravated assault charge. We affirm.

Alexander Tyshynsky testified at trial that he was the disc jockey and night manager at Playmates Lounge on the night of the robbery. Earlier that afternoon, he removed $300 in three stacks of singles from the locked cash drawer and placed them in front of the cash register for Linda Yatsko, the bartender. Tyshyn-sky then went back to the sound booth to work. He heard a very loud bang and saw people dropping to the floor. He saw two men brandishing weapons in the air and yelling for everyone to get down. Both men had large caliber automatic pistols. One of the men jumped over the bar, pointed his gun in Tyshynsky’s face, and told him to “be cool.” The man then went to the register and grabbed the $300 at the register.

Linda Yatsko was named as the sole victim in the robbery count. At the start of trial, just after jury selection, the state moved to amend the information to *422name Alex Tyshynsky as an additional victim in the robbery count.1 Defense counsel objected, explaining to the court that he had deposed both Yatsko and Tyshyn-sky and prepared the case based on the information’s allegation that the money was taken from the custody of Linda Yat-sko. Defense counsel stated:

Mr. Tyshinsky (sic) did give a deposition, he was no where (sic) near the money neither was Linda Yatsco (sic), that was our whole defense. I have prepared and brought case law from my motion for judgment of acquittal. I have reviewed statutes and the jury instructions regarding custody and control and for now the State, who has announced ready (sic), has been in touch with their witnesses, has the benefit of the depositions, has the power to amend or seek to amend since January of 2007, hasn’t done so and is now, after we picked the jury, starting the witnesses to amend is completely prejudicial to the Defense.

Defense counsel further explained that Mr. Tyshynsky had stated at the deposition that he was in the sound booth when the robbery was committed. He argued:

He was not in possession of the money at the time, that was the taking, and I specifically asked that because this is where I’ve been going the whole time on this case. And I have case law which indicates where there are a group of employees and you cannot have the taking from any of those employees, it has to be from the one who has custody and control. And that particular case they brought the employee and made her take the money, open the cash register, take the money out and they took it from her. That was the robbery of her. They were also convicted to robbery, one of the other employees, they said, no, you can’t do that because she didn’t have custody and control of the money and that’s why I have that case law.

The prosecutor responded that defense counsel had been able to take depositions of both Yatsko and Tyshynsky and that there could be no prejudice because, as defense counsel pointed out, his defense was the same whether the named victim was Tyshynsky or Yatsko. We agree with the state that defendant did not show any prejudice resulting from the amendment and that the court did not abuse its discretion by allowing the state to amend the information. See Toussaint v. State, 755 So.2d 170, 171 (Fla. 4th DCA 2000) (quoting State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989)) (“the state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.”).

We further find that the trial court did not err in imposing a three-year minimum mandatory prison term on the defendant’s five-year sentence for aggravated assault under Section 775.087(2), Florida Statutes (2006), the 10/20/life statute, because the information as to Count II alleged that during the commission of said felony the defendant did actually possess a firearm, and the jury found the defendant guilty as charged. See Altieri v. State, 835 So.2d 1181, 1184-85 (Fla. 4th DCA 2002) (holding that the trial court did not err in imposing a three-year mandatory minimum under the 10/20/life statute where the jury found the defendant guilty of aggravated assault “as charged in the information” and the information alleged that the defendant “used a deadly weapon, to wit: *423a firearm” during the commission of the aggravated assault).

Affirmed.

HAZOURI and MAY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Peterson Baltazare Simbert v. State, 226 So. 3d 883 (Fla. 4th DCA 2017)
    …tal penetration, the state alleged a completely different means of committing .sexual battery and effectively filed a new charge. A trial court’s ruling allowing the state to amend the information is reviewed for abuse of discretion. Jean v. State, 11 So. 3d 421, 422 (Fla. 4th DCA 2009), ,“[T]he state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.” Green v. State, 728 So. 2d 779…
  • Gustin v. State, 125 So. 3d 1025 (Fla. 4th DCA 2013)
    …PER CURIAM. We affirm appellant’s conviction and sentence. The issue he raises with respect to the amendment of the information during trial was disposed of by this court in the appeal of his co-defendant in Jean v. State, 11 So. 3d 421 (Fla. 4th DCA 2009). His claim that his statement should have been suppressed because he invoked his rights at a magistrate’s hearing lacks merit because it did not occur when custodial interrogation was imminent, see Sapp v. State, 690 So. 2d 581,…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw