GUILLERMO DIAZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Guillermo Diaz was convicted of sexual battery and lewd molestation of a child. The Fourth District Court of Appeal reversed his conviction on count III because the trial court improperly allowed the State to amend the charging information mid-trial to change the method of sexual battery from digital penetration to oral union, which constituted a fatal variance in proof.
The court reversed Diaz's conviction on count III, holding that the difference between the charged offense (digital penetration) and the proof offered (oral union) constitutes a fatal variance that cannot be cured by amending the information after trial has begun. The court affirmed convictions on counts I and IV.
[1] A conviction for sexual battery requires proof of the specific manner of offense charged in the information.
[2] A fatal variance between the manner of sexual battery charged and the manner proven at trial cannot be cured by amending the charging document to conform to the proof.
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Join FLexlaw to unlock all legal intelligence“Where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged.”
Establishes the fundamental principle that the proof must match the specific manner alleged in the charging document.
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Join FLexlaw to unlock all legal intelligenceDiaz, age 28, was charged with two counts of sexual battery and two counts of lewd/lascivious molestation on a child under twelve. Count III specifica…
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Guillermo Diaz, twenty-eight, was charged with two counts of sexual battery on a person less than twelve years old and two counts of lewd or lascivious molestation on a person less than twelve years old. Count III specifically charged Diaz with sexual battery on a person less than twelve years old by inserting his fingers into the victim’s vagina on October 26, 2006, in violation of section 794.011(2)(a), Florida Statutes (2006). During trial, after the State rested, defense counsel moved for a judgment of acquittal as to count III, contending that the State had not proven digital penetration. In response, the State sought to amend count III to include oral union with the victim’s vagina. The trial court permitted the amendment over defense objection. The jury found Diaz guilty as charged. The trial court adjudicated Diaz guilty of only counts I, III, and IV, however, reasoning that an adjudication of counts II and IV would violate double jeopardy. The trial court sentenced Diaz to life for count I, to run concurrently to life for count III, to run concurrently to twenty-five years for count IV. We find merit in Diaz’s argument that the trial court erred in denying his motion for judgment of acquittal.
“ ‘Where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged.’ ” Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999) (quoting Long v. State, 92 So.2d 259, 260 (Fla. 1957)). For example, in Tillman v. State, 559 So.2d 754, 754 (Fla. 4th DCA 1990), this court reversed a conviction for sexual battery- where the State’s information *793charged the defendant with “ ‘penetration’ ” but not “ ‘union with’ ” under section 794.011(l)(h), Florida Statutes (1987), and the State’s evidence did not establish that penetration occurred.
“ ‘[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.’ ” Toussaint v. State, 755 So.2d 170, 171 (Fla. 4th DCA 2000) (quoting State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989)). However, “[pjroof of another separate and distinctly different crime rather than the one charged constitutes a fatal variance in proof which in a criminal case cannot be ‘cured’ by amending the charging document to conform to the proof of the crime not charged.” Rose v. State, 507 So.2d 630, 632 (Fla. 5th DCA 1987).
Because the State initially charged digital penetration and proved only oral union, we reverse Diaz’s judgment of conviction and sentence as to count III, holding that this difference is a fatal variance in proof that cannot be cured by amending the information. We affirm without discussion Diaz’s convictions as to counts I and IV.
Reversed and remanded.
GROSS, C.J., and CIKLIN, J., concur.
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Morgan v. State, 146 So. 3d 508 (Fla. 5th DCA 2014)…Long v. State, 92 So. 2d 259, 260 (Fla.1957), and Florida courts have consistently applied this rule since its inception. Deleon v. State, 66 So. 3d 391, 393 (Fla. 2d DCA 2011); Brown v. State, 41 So. 3d 259, 262 (Fla. 4th DCA 2010); Diaz v. State, 38 So. 3d 791, 792 (Fla. 4th DCA 2010); Trahan v. State, 913 So. 2d 729, 730 (Fla. 5th DCA 2005); D.R. v. State, 790 So. 2d 1242, 1244^45 (Fla. 5th DCA 2001); Zwick v. State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999). Consistent with this rule, a criminal defendant…
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Peterson Baltazare Simbert v. State, 226 So. 3d 883 (Fla. 4th DCA 2017)…876 So. 2d 1273, 1274 (Fla. 2d DCA 2004) (holding the trial court erred in allowing an amendment to the charging document that “was not a mere correction of a scrivener’s error but instead was a change to an element of the offense”); Diaz v. State, 38 So. 3d 791, 793 (Fla. 4th DCA 2010) (reversing where the state amended the information, after defense counsel moved for a judgment of acquittal, to allege oral union instead of digital penetration). Appellant also argues the trial court abused its discretion…
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Val Viladoine v. State, 268 So. 3d 804 (Fla. 4th DCA 2019)…er a break, the trial court granted the state’s motion to amend Count I of the information to add penetration by an object. The court found no prejudice to the defendant because his defense was alibi. This case is controlled by Diaz v. State, 38 So. 3d 791 (Fla. 4th DCA 2010), and Simbert v. State, 226 So. 3d 883 (Fla. 4th DCA 2017), sexual assault cases where convictions were reversed because the mode of unlawful contact with the victim, as alleged in the information, was changed mid-trial. In…
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
- State v. Anderson, 537 So. 2d 1373 (Fla. 1989)
- Long v. State, 92 So. 2d 259 (Fla. 1957)
- Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987)
- Watts v. State, 730 So. 2d 759 (Fla. 2d DCA 1999)
- Elvestre Toussaint v. State, 755 So. 2d 170 (Fla. 4th DCA 2000)
- Ranier Montalvo v. The Honorable M. Daniel Futch Jr., 559 So. 2d 754 (Fla. 4th DCA 1990)