LEWIS JOSEPH LACKOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lackos was convicted of buying, receiving, or aiding in the concealment of stolen property. The State amended its information during trial to correct the owner's corporate name from "Remington Electric Razors, Incorporated" to "Remington Electric Shavers, a Division of Sperry Rand Corporation." The court upheld the amendment, distinguishing prior precedent and rejecting reversal where no prejudice was shown.
The conviction is affirmed. While ownership is an essential element of buying, receiving, or aiding in the concealment of stolen property, the amendment is permissible where: (1) the information is refiled and resworn, (2) procedural irregularities do not substantially prejudice the defendant's rights, and (3) the defendant receives a fair trial even if not a perfect trial.
[1] A court may permit amendment of an information during trial if the amendment does not mislead the accused, embarrass them in the preparation of their defense, or expose t…
[2] Amendments to an information during trial are permissible when they correct technical defects that do not affect the substantial rights of the accused.
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Join FLexlaw to unlock all legal intelligence“As in the case of burglary, ownership is an essential element of the charge of buying, receiving or aiding in the concealment of stolen property.”
Establishes that ownership is a material element of the crime, making the amendment potentially significant
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Join FLexlaw to unlock all legal intelligenceLackos was charged with receiving stolen electric razors. The information identified the owner as Remington Electric Razors, Incorporated. During tria…
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GRIMES, Judge.
Appellant was convicted of buying, receiving or aiding in the concealment of stolen property. There was ample evidence to support the judgment. The issue which prompts our concern is whether the court erred in permitting the state to amend its information during the course of the trial.
In the information, the owner of the property was specified to be Remington Electric Razors, Incorporated. During the state’s case, the local manager of the company from which the electric razors had been stolen testified that the correct corporate name of the firm at the time of this incident was Remington Electric Shavers, a Division of Sperry Rand Corporation. At this point, the state moved to amend its information to set forth the correct corporate name. Upon objection, the court offered to continue the trial for as long as reasonably necessary for the appellant to seek to obtain evidence to indicate that he would be prejudiced by the amendment. Appellant’s counsel asserted that prejudice was beside the point and declined the offer of continuance. Thereupon, the state was permitted to amend, and the appellant was subsequently convicted.
In Alvarez v. State, 1946, 157 Fla. 254, 25 So. 2d 661, the information charged the defendant with breaking and entering a building owned by Harold McGucken with intent to commit a felony, to wit: grand larceny. In the middle of the trial, it developed that the building was actually owned by McGucken Liquor Stores, Inc., a corporation. Over the defendant’s objection, the court permitted the state to amend its information by striking out the name of the alleged owner and inserting in lieu thereof the proper name. This was held to be reversible error by the Supreme Court. The Supreme Court followed Alvarez in Sipos v. State, Fla.1956, 90 So. 2d 113, when it held that the lower court erred during the trial in permitting an information charging burglary of a building owned by Sterchi Brothers, Inc., a corporation, to be amended to read Sterchi Brothers Stores, Inc., a corporation.
As in the case of burglary, ownership is an essential element of the charge of buying, receiving or aiding in the concealment of stolen property. Pelaez v. State, 1932, 107 Fla. 50, 144 So. 364. Therefore, must this case be reversed when there is not even the remote suggestion that appellant was prejudiced by the amendment? We think not.
Alvarez is distinguishable to the extent that the opinion was predicated in large part upon the conclusion that the defendant had been tried in violation of Florida constitutional provisions which require that informations be filed under oath. Unlike Alvarez, the information in the instant case was refiled and resworn. By the same token, the information in Sipos had not been refiled and reverified. Of further significance is the fact that the Sipos amendment occurred after the taking of testimony was closed, and the court denied the defendant’s request for a continuance.
RCP 3.140(c), first adopted in 1967, is apropos to this issue. The rule reads as follows:
“(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”
While similar language was contained in former Fla.Stat. § 906.25 when Alvarez and Sipos were decided, there is no indication in these opinions that the statute was considered.
The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial. Michigan v. Tucker, 1974, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182. Appellant received a fair trial.
Affirmed.
HOBSON, Acting C. J., and SCHEB, J., concur.
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Citator
Cited By
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State v. Anderson, 537 So. 2d 1373 (Fla. 1989)…original, superseded information. The court found this to be reversible error. In relying on Alvarez and Wilcox, the district court apparently overlooked Lackos v. State, 339 So. 2d 217 (Fla.1976) where we accepted jurisdiction of Lackos v. State, 326 So. 2d 220 (Fla. 2d DCA 1976) because of conflict with Alvarez and Sipos. In Lackos, during trial and over the objection of the defendant, the state was permitted to substantively amend the information by correcting the name of the owner from which the propert…
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Lacros v. State, 339 So. 2d 217 (Fla. 1976)…the amendment. Petitioner’s counsel asserted that the question of prejudice was immaterial and declined the offer of continuance. Thereupon, the State was permitted to amend, and the petitioner was subsequently convicted. In an opinfeh reported at 326 So. 2d 220, the Second District Court of Appeal affirmed the action taken by the trial court. Because of conflict in decision with Alvarez v. State, 157 Fla. 254, 25 So. 2d 661 (1946), and Sipos v. State, 90 So. 2d 113 (Fla.1956), we issued our order allowing…
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Snipes v. State, 733 So. 2d 1000 (Fla. 1999)…to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure.” Id. at 219 (quoting Lackos v. State, 326 So. 2d 220, 221 (Fla. 2d DCA 1976)). In this case, the victim was identified by four different names in the indictment: “Markus Mueller a/k/a Markus Muller a/k/a Markus Muller a/k/a Kark Markus Muller.” The victim was identified at trial as Karl Markus Muelle…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Michigan v. Tucker, 417 U.S. 433 (U.S. 1974)
- Alvaro Alvarez v. State, 157 Fla. 254 (Fla. 1946)
- United States Fid. & Guar. Co. v. ADA A. Tressler, 157 Fla. 254 (Fla. 1946)
- Pelaez v. State, 107 Fla. 50 (Fla. 1932)
- Vlock v. White, 90 So. 2d 113 (Fla. 1956)