STATE OF FLORIDA, APPELLANT,
v.
NORBERT LEE BANDI, APPELLEE
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The State appeals the dismissal of an indecent assault charge against Norbert Lee Bandi on grounds that the information failed to provide sufficient particulars of the offense. The Fourth District Court of Appeal reverses, holding that the State adequately complied with the requirement to provide a statement of particulars and that an exact date is not an element of the offense.
The State adequately complied with both the bill of particulars requirement and due process. An exact date is not an element of the offense of indecent assault, and the defendant cannot elevate it to an element by proposing an alibi defense. A charge specifying the crime occurred between two dates satisfies the constitutional and procedural requirements.
[1] A statement of particulars must specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and a…
[2] Reasonable doubts concerning the construction of the rule requiring a statement of particulars shall be resolved in favor of the defendant.
Previewing 2 of 5 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“It is not necessary that the exact date of the offense be alleged.”
Establishes the key principle that precise dating is not required in the information or bill of particulars.
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Join FLexlaw to unlock all legal intelligenceThe information charged indecent assault on a nine-year-old child and initially alleged the offense occurred between April 1, 1974, and February 16, 1…
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WALKER, WILLIAM L., Associate Judge.
The State appeals the trial court’s Order granting defendant-appellant’s Motion to Dismiss.
The information alleged indecent assault on a nine year old between April 1, 1974, and February 16, 1975. A statement of particulars narrowed the date to a period of March 1 to June 1, 1974. At the hearing the State Attorney said he could not further refine the time span. The case was dismissed without prejudice.
Involved is F.R.Cr.P. 3.140(n):
“(n) Statement of Particulars. The Court, upon motion, shall order the prosecuting attorney to furnish a statement of particulars, when the indictment or information upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Such statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.” (Emphasis added.)
Here involved is not the issue of granting a bill of particulars but the quality of compliance. It is not necessary that the exact date of the offense be alleged. See State v. Beamon, 298 So. 2d 376 (Fla.1974). It is our opinion the State has complied with both the requirement of the bill and the requirement of due process. We do not believe the State has the burden of showing what it has done toward narrowing the time requirement. We are further of the opinion that the exact time is not an element of an offense and defendant can not so make it by presenting a “possible” defense of alibi.
See Sparks v. State, 273 So. 2d 74 (Fla. 1973), at 75. See also, State v. Beamon, supra, at 379. It has been held that an information or bill of particulars may properly charge the crime between two dates. See Skipper v. State, 114 Fla. 312, 153 So. 853 (1934) at 858, app. dismissed 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631 (1934).
Accordingly, the trial court’s order granting defendant’s motion to dismiss is vacated and set aside and the cause remanded to the trial court for further proceedings consistent herewith.
REVERSED AND REMANDED.
MAGER, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Lightbourne v. State, 438 So. 2d 380 (Fla. 1983)…offense if such date is not known. Rather the indictment or information in such cases will be deemed sufficient if it is alleged that the offense occurred within stated specific time limits. Sparks v. State, 273 So. 2d 74 (Fla.1973); State v. Bandi, 338 So. 2d 75 (Fla. 4th DCA 1976), cert. denied, 344 So. 2d 323 (Fla.1977). The statement of particulars given by the state narrowed the time period for the alleged offense to sometime between 5:30 p.m. on January 16, 1981, and 4:00 p.m. on January 17, 1981. Fur…
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Tingley v. State, 549 So. 2d 649 (Fla. 1989)…(Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); Sparks v. State, 273 So. 2d 74 (Fla.1973); Hunter v. State, 85 Fla. 91, 95 So. 115 (1923); see also State v. Belton, 468 So. 2d 495 (Fla. 5th DCA 1985); State v. Bandi, 338 So. 2d 75 (Fla. 4th DCA 1976), cert. denied, 344 So. 2d 323 (Fla.1977). The common law principle expressed in Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927), and Dickson v. State, 20 Fla. 800 (1884), that times and dates within an indictment or informati…
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State v. Belton, 468 So. 2d 495 (Fla. 5th DCA 1985)…s not assert an insufficient time for preparation, and secondly, the amended information includes the time frame of the original, so that any investigation of that time [*498] frame is still of value. See Hoffman v. State, supra. In State v. Bandi, 338 So. 2d 75 (Fla. 4th DCA 1976), cert. denied, 344 So. 2d 323 (1977), a statement of particulars furnished by the State narrowed the time span within which the charged indecent assault had occurred to between March 1 and June 1, 1974. When the State announced t…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Beamon, 298 So. 2d 376 (Fla. 1974)
- Skipper v. State, 114 Fla. 312 (Fla. 1934)
- Sparks v. State, 273 So. 2d 74 (Fla. 1973)
- Secor v. Fulton, 293 U.S. 517 (U.S. 1934)