WILLIAM ROBERT O'MASTA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a worthless check conviction because the information alleged the check was dated December 22, 1972, but evidence showed it was dated December 23, 1972 (post-dated), and uttering a post-dated check is not a crime under Florida law.
A conviction for uttering a worthless check must be reversed when the information alleges a specific date of issuance but the evidence proves a different date that would constitute a post-dated check, which is not criminal under Fla. Stat. § 832.05(2)(a).
[1] A variance between the date of issuance alleged in an information and the date proven at trial is fatal to a worthless check conviction when the proven date constitutes a…
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with unlawfully uttering a worthless check on December 22, 1972, but the evidence at trial showed the check was actually dated D…
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PER CURIAM.
Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that the trial court erred in denying defendant’s motion for judgment of acquittal as to Count One of the information made after the close of the state’s case. In particular, count one of the information charged that the defendant did “unlawfully draw, make, utter, issue and deliver” a worthless check on December 22,1972 when in fact the check was dated December 23, 1972 thereby denoting the issuance of a post-dated check the uttering of which is not a crime under sec. 832.05(2)(a), Florida Statutes. The state suggests that notwithstanding the allegations contained in the information, the evidence presented did in fact support the uttering of the check in question on December 23, 1972. Such a variance between the allegations and proof was under the circumstances of this case fatal, rendering improper any conviction on that particular charge. Howlett v. State, 260 So. 2d 878 (Fla. 4th DCA 1972). Accordingly, no further reversible error having been made to clearly appear, the judgment and conviction of sentence as to Count One is reversed and the cause remanded for further proceedings consistent herewith.
MAGER, C. J., ALDERMAN, J., and WILLIAMS, W. C., Ill, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Banderas v. State, 372 So. 2d 489 (Fla. 3d DCA 1979)…uestion of whether a check which has been issued on one day and dated the next day, i. e., issued on December 22, 1972, and dated December 23, 1972, is a postdated check has been considered by the Fourth District Court of Appeal in O’Masta v. State, 336 So. 2d 686 (Fla. 4th DCA 1976). The court reasoned that the check was “postdated” as that term is used in Section 832.05(2)(a). In our opinion, the same reasoning and result should apply in the instant case, even though the postdate used was an impossible date…
Authorities Cited
- LEE v. State, 260 So. 2d 878 (Fla. 1st DCA 1972)