CECIL CROWELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that allowing the state to amend the bill of particulars to conform to proof regarding the date of the offense, after evidence was presented, prejudiced the defendant's defense.
The defendant was charged with assault to commit murder, with the offense alleged to have occurred on June 25, 1969. The state's proof indicated a dif…
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The defendant was charged by information with the crime of assault to commit murder. He entered a plea of not guilty and waived jury trial. A non-jury trial was had in the Criminal Court of Record for Dade County which resulted in his being adjudicated guilty of aggravated assault and imposition of a sentence of two years in the state penitentiary.
Appellant seeks reversal of the judgment and sentence on the grounds that the trial court erred in finding the defendant guilty because the proof at trial failed to establish all material allegations of the information and that the proof varied materially from the bill of particulars.
The information by which the defendant was charged alleged that the crime was committed on the 25th of June, 1969. The proof offered by the state tended to show that the offense took place at a time different from that set forth in the in*691formation and bill of particulars. After all the evidence was presented by the state and the defendant, the state was allowed, over the objection of the defendant, to amend the bill of particulars to conform to the state's proof as to the date of the offense.
Appellant contends that he was prejudiced in his defense by the untimely amendment to the bill of particulars as he went to trial and prepared his defense to the charges based upon the state’s allegation that the crime was committed on the date specified in the information and bill of particulars which was at a time when the defendant was in the Dade County Jail. We agree with defendant’s contention and reverse. Thomas v. State, 74 Fla. 200, 76 So. 780; Daniel v. State, Fla.App.1963, 156 So.2d 14.
Accordingly the judgment and sentence are reversed and the cause remanded with directions to grant a new trial.
Reversed and remanded.
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State v. Beamon, 298 So. 2d 376 (Fla. 1974)…ffense was committed on Nov. 24, 1972. Nor may the State remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence. Crowell v. State, 238 So. 2d 690 (Fla.App. 3d 1970). Thus, it is clear that the bill of particulars on the first Information narrowed the date of the alleged offense to the date of Nov. 24, 1972, and respondent could not therefore be convicted under that Information, as so limited,…
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Hoffman v. State, 397 So. 2d 288 (Fla. 1981)…Horton v. Mayo, 153 Fla. 611, 613-14, 15 So. 2d 327, 328 (1943). Compare Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So. 2d 1124 (Fla.1979), and Perlman v. State, 269 So. 2d 385 (Fla. 4th DCA 1972), with Crowell v. State, 238 So. 2d 690 (Fla. 3d DCA 1970). Hoffman contends that Beamon is an absolute bar to allowing a variance between the date alleged and proved and to amending the date alleged in a statement of particulars. The district court, on the other hand, has found such var…
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Perlman v. State, 269 So. 2d 385 (Fla. 4th DCA 1972)…e state that the defendant operated a gambling house on dates other than July 21 in my opinion constituted a material variance from the date set forth in the information as limited by the bill of particulars. See also Crowell v. State, Fla.App.1970, 238 So. 2d 690; Crusoe v. State, Fla.App.1966, 183 So. 2d 600. The introduction of evidence relating to the conduct of a gambling operation on dates other than July 21, 1971, were prejudicial since without such dates it would not have been possible for the state t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 74 Fla. 200 (Fla. 1917)
- Grady Daniel v. State, 156 So. 2d 14 (Fla. 2d DCA 1963)