HENRY CLEVELAND BARBER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Cleveland Barber appeals his conviction for breaking and entering with intent to commit grand larceny, challenging the trial court's denial of his motion to strike testimony concerning a building at a different address than that specified in the bill of particulars. The court affirms the conviction, finding no prejudicial variance between the information and bill of particulars.
The trial court properly denied the motion to strike. Although the bill of particulars specified one address and testimony involved another, there was no prejudicial variance because the information contained the correct address, the defense received the correct address in a subsequent letter, and nothing in the record indicates the defense was misled or embarrassed in preparing its case.
[1] A variance between an information and a bill of particulars is not fatal if the defendant was not misled or embarrassed in the preparation or presentation of the defense.
[2] The purpose of a bill of particulars is to provide the defendant with notice of the specific acts the state intends to prove, enabling adequate defense preparation.
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Join FLexlaw to unlock all legal intelligence“The purpose of a bill of particulars is merely to give the defendant notice of the particular acts relied upon by the state to establish the crime charged, in order that the defendant will have a proper opportunity to prepare a defense.”
Establishes the fundamental purpose and scope of a bill of particulars in criminal procedure
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Join FLexlaw to unlock all legal intelligenceBarber was charged by information with breaking and entering with intent to commit grand larceny. The bill of particulars indicated the crime occurred…
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Defendant, appellant here, Henry Cleveland Barber, was charged by way of information with breaking and entering with intent to commit a felony, to-wit: grand larceny. He was found guilty by a jury and sentenced to a term of six months to five years by the trial judge.
Appellant raises five points here, however, only the first is worthy of comment. *3That is, that the trial court erred when it denied defendant’s motion to strike the testimony relating to a building located in a place different from that where the alleged breaking and entering occurred pursuant to the statement of particulars. During the trial the defendant filed a motion to strike all testimony concerning evidence of breaking and entering of a building in the 600 Block of Tenth Street, since the bill of' particulars indicated the address for the breaking and entering to be at 720 Tenth ’Street, Palmetto, Florida. The court denied the motion and as has been stated above this was one of the grounds for appeal.
The purpose of a bill of particulars is merely to give the defendant notice of the particular acts relied upon by the state to establish the crime charged, in order that the defendant will have a proper opportunity to prepare a defense. Middleton v. State, 74 Fla. 234, 76 So. 785 (1917); Hunter v. State, Fla.App.1967, 200 So.2d 577. In deciding whether a variance between the information and the bill of particulars is fatal to the judgment it is necessary to determine whether the defendant may have been misled or embarrassed in the preparation or presentation of his defense. Cannon v. State, 91 Fla. 214, 107 So. 360, 363 (1926). Fitzgerald v. State, Fla.App. 1969, 227 So.2d 45.
The record in the instant case shows that the correct address and the name of the establishment involved were shown in the information. The trial judge also noted that a letter was sent to the defense giving the correct address. This letter was sent several days after the bill of particulars was furnished. We find nothing in the record to indicate the defense was misled or embarrassed in the preparation or presentation of its case.
For these reasons the judgment of the trial court is affirmed.
PIERCE, C. J., and MANN, J., concur.
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Citator
Cited By
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Hoffman v. State, 397 So. 2d 288 (Fla. 1981)…296 So. 2d 89 (Fla. 4th DCA), cert. denied, 307 So. 2d 449 (Fla.1974); Howlett v. State. See also Hale v. State, 273 So. 2d 145 (Fla. 3d DCA), cert. denied, 277 So. 2d 285 (Fla.1973) (particulars amended to show different location); Barber v. State, 243 So. 2d 2 (Fla. 2d DCA 1971) (particulars amended to show different address). In response to the district court’s reasoning, Hoffman points out that Florida Rule of Criminal Procedure 3.140(n)2 does not mention prejudice,. In his opinion, therefore, the distr…
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Slaughter v. State, 301 So. 2d 762 (Fla. 1974)…ra, was in the nature of connecting or predicate testimony, and therefore was not prejudicial. Additionally, appellants have not demonstrated that they were misled or hampered in the presentation of their defenses by this testimony. Barber v. State, 243 So. 2d 2 (Fla.App.1971); Hunter v. State, 200 So. 2d 577 (Fla.App.1967); Hopkins v. State, 52 Fla. 39, 42 So. 52 (1906). Appellants also argue in point nine, supra, about appellant'Featherston’s being questioned regarding a federal conviction and the basis…
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Dozier v. State, 662 So. 2d 382 (Fla. 4th DCA 1995)…for the same offense, the variance is immaterial and does not preclude conviction. (Citations omitted.) We conclude that there was not such a variance here as could have misled defendant or subjected him to reprosecution. See also Barber v. State, 243 So. 2d 2 (Fla. 2d DCA 1971) (Information charged breaking and entering a building in the 600 block of 10th Street when the building was actually in the 700 block.) As to the additional instruction which the court gave about the structure, we are unpersuaded…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cannon v. State, 107 So. 360 (Fla. 1926)
- Middleton v. State, 74 Fla. 234 (Fla. 1917)
- Fitzgerald v. State, 227 So. 2d 45 (Fla. 3d DCA 1969)
- Hunter v. State, 200 So. 2d 577 (Fla. 3d DCA 1967)