ANGEL JIMINEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Angel Jiminez was convicted of conspiracy to commit a felony, unlawful sale of heroin, and unlawful possession of heroin. The Florida District Court of Appeal affirmed the conspiracy and possession convictions but reversed the heroin sale conviction because the state proved sale of morphine, not heroin, constituting a fatal variance between the charge and the proof.
Proof of the sale of morphine is a fatal variance from a specific charge of unlawful sale of heroin and requires reversal of that conviction. Although morphine and heroin are both derivatives of opium covered under the statutory definition, the defendant was specifically charged with heroin sales, not with sale of opium or its derivatives generally, and cannot be convicted of a different offense than charged.
[1] Sufficient competent evidence sustains convictions and sentences for conspiracy to commit a felony and unlawful possession of heroin.
[2] A conviction cannot be had on evidence of an offense distinct from that charged in the indictment.
Previewing 2 of 6 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“The accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.”
Establishes the fundamental constitutional principle that prohibits conviction for a different offense than charged, even if related.
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Join FLexlaw to unlock all legal intelligenceJiminez was charged in a non-jury trial with conspiracy to commit a felony, unlawful sale of heroin, and unlawful possession of heroin. The state pres…
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Angel Jiminez was charged and convicted in a non-jury trial of conspiracy to commit a felony, unlawful sale of heroin and unlawful possession of heroin. He appeals from his conviction for these charges.
We find from an examination of the record that there was sufficient competent evidence to sustain his convictions and sentences on the charges of conspiracy to commit a felony and unlawful possession of heroin.
The information also charged Jiminez with unlawful sale of a certain narcotic drug, to wit: heroin, a derivative of opium. The state produced evidence of the unlawful sale by the defendant of morphine. Jiminez argues this is a fatal variance requiring reversal of his conviction and sentence on this charge.
In Penny v. State, 140 Fla. 155, 191 So. 190 (1939), the court said at p. 193:
“The constitution (Declaration of Rights, § 11) guarantees to every accused person * * * the right to know ‘the nature and cause of the accusation against him,’ and it necessarily follows that the accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.”
42 C.J.S. Indictments and Informations § 261 states:
“Under an indictment charging a particular offense, a conviction cannot be had on evidence of another and distinct offense, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment. * * * Where a statute penalizes certain acts in the disjunctive, proof of any one of such acts under an indictment charging all of the acts conjunctively is * * * sufficient; but if the indictment alleges only one state of facts proof of the existence of another state of facts will not sustain a conviction.”
See also 17 Fla.Jur. Indictments and Information §§ 94 and 95.
The state argues that proof of the unlawful sale of morphine is not a fatal variance from a charge of the unlawful sale of a certain narcotic drug, to wit: heroin, a derivative of opium.
It argues that § 398.02(11), Fla.Stat., F. S.A., defines opium to include morphine and heroin and any compound derivative or preparation of opium, and that § 398.03, Fla.Stat., F.S.A., makes it unlawful for any person to possess or sell any narcotic drug except as authorized by statute.
Jiminez was not charged with the sale of opium or any of its components or derivatives. He was not charged with possession and sale of any narcotic drug. He was specifically charged with the sale of a certain narcotic drug, to wit: heroin, a derivative of opium. Proof of the sale of morphine is, in our opinion, a fatal variance. The state, by its own chemist, should
. have known that the drug which was sold was morphine and not heroin and it could have easily filed the proper charges prior to trial.
This is not a case of an immaterial variance between the allegata and probata. Cf. McIntosh v. United States, 1 F.2d 427 (7th Cir. 1924); Williams v. United States, 294 F. 682 (5th Cir. 1923); and People v. Bill, 140 CaLApp. 389,-35 P.2d 645 (1934).
Proof of the sale of morphine is not sufficient to convict under a specific charge *28of unlawful sale of heroin. Cf. Coleman v. United States, 26 F.2d 870 (8th Cir. 1928); and Guilbeau v. United States, 288 F. 731 (5th Cir. 1923).
In Coleman the court stated at p. 871:
******
“ * * * The indictment charges the unlawful sale of morphine. Sulphate hydrochloride is not morphine. It follows that the proof failed to establish the material allegations of * * * the indictment.”
***** *
A conviction of this defendant for the unlawful sale of heroin would not bar a subsequent prosecution for the unlawful sale of morphine.
There was a fatal variance in the charge as laid by the state and the proof presented for conviction on the charge.
The conviction and sentence of Jiminez for the unlawful sale of heroin be and the same is reversed and the defendant is discharged from that specific charge.
Affirmed in part, reversed in part.
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State v. Sobel, 363 So. 2d 324 (Fla. 1978)…or embarrass the defendant in the preparation of his defense, nor can he be subjected to a subsequent prosecution. Cf. Cole v. State, 142 Ga.App. 461, 236 S.E. 2d 125 (1977); United States v. Dolan, 544 F. 2d 1219 (4th Cir. 1976). Jiminez v. State, 231 So. 2d 26 (Fla. 3rd DCA 1970), is distinguishable because in that case the information charged the unlawful sale of heroin, a derivative of opium, while the state proved the unlawful sale of morphine, a derivative [*329] of opium. Heroin is not morphine, nor…
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State v. Ryan, 413 So. 2d 411 (Fla. 4th DCA 1982)…these drugs are harmful. Under § 893.13, which, as has been discussed, does not have a knowledge requirement, the Third District has ruled that a charge of sale of heroin could not be proved by the evidence of a sale of morphine. Jimenez v. State, 231 So. 2d 26 (Fla. 3d DCA 1970). Under § 893.-135(l)(b) which does have a knowledge requirement, it would follow that proof of trafficking in cocaine would not support a charge of trafficking in marijuana or vice versa. If the drug must be the one charged it wou…
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Royce Earl Atwell v. State, 739 So. 2d 1166 (Fla. 1st DCA 1999)…njunc-tively is * * * sufficient; but if the indictment alleges only one state of facts proof of the existence of another state of facts will not sustain a conviction.” See also 17 FlaJur. Indictments and Information §§94 and 95. Jiminez v. State, 231 So. 2d 26, 27 (Fla. 3d DCA 1970). See Warren v. State, 635 So. 2d 122 (Fla. 1st DCA 1994). “The [Florida] constitution ... guarantees to every accused person ... the right to know ‘the nature and cause of the accusation against him,’ and it necessarily follow…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mose Penny v. State, 140 Fla. 155 (Fla. 1939)
- McINTOSH v. United States, 1 F.2d 427 (7th Cir. 1924)
- Coleman v. United States, 26 F.2d 870 (8th Cir. 1928)