PATTY JO HAGY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Affirmed conviction for larceny where appellant was charged with stealing cash but proof showed stolen checks were negotiated through her account, as no variance objection was preserved at trial and checks constitute the same property interest as cash for larceny purposes.
A variance between allegations of larceny of cash and proof of stolen checks does not constitute reversible error when no objection is raised at trial, and checks are sufficiently similar to cash for larceny charging purposes.
[1] A variance between allegations in a larceny information and proof at trial is not reviewable on appeal if not raised before or during trial.
[2] Embezzlement and larceny must be pleaded with the same particularity, and checks and cash constitute sufficiently similar property for larceny charging purposes.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with larceny of cash, but the evidence showed she had stolen checks that were negotiated through her account.…
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PER CURIAM.
The appellant was charged with larceny of cash. The proof disclosed that she had' stolen checks which were negotiated through her account. This appeal ensued.
The appellant urges a variance between the allegations of the information and the proof. We find no merit to the argument. First, no such objection was made before or during the trial. Fla.App. Rule 6.7(g). There was no judicial act to which an assignment of error could be made. See: Rice v. State, 243 So. 2d 226 (Fla. 4th D.C.A.1971); Fla.App. Rule 3.5(c). If a question of variance is not raised at trial, it will not be subject to review on appeal. Sharp v. State, 328 So. 2d 503 (Fla. 3rd D.C.A.1976). Further, it has been held that one charged with embezzling the sum of $5,000.00 lawful United States currency was subject to conviction, when the proof demonstrated that the embezzlement was a check for said amount. See: Brown v. State, 92 Fla. 538, 109 So. 438 (1926). It has also been held that embezzlement and larceny should be pleaded with the same particularity. See: Grant v. State, 35 Fla. 581, 17 So. 225 (1895).
Therefore, for the reasons above stated [first, that it does not appear that there was a departure in the proof from the charge and, second, even if so no error was preserved] the conviction under review be and the same is hereby affirmed.
Affirmed.
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Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981)…variance between the allegations and proof is not such as to have misled the defendant or subject him to a substantial possibility of reprosecution for the same offense, the variance is immaterial and does not preclude conviction. See Hagy v. State, 347 So. 2d 773 (Fla. 3d DCA 1977); Ricks v. State, 224 So. 2d 413 (Fla. 3d DCA 1969). In the circumstances of the present case appellant is not subjected to a substantial possibility of reprosecution, and it is clear that he was not misled or prejudiced in his def…
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W.F. v. State, 609 So. 2d 174 (Fla. 3d DCA 1992)…PER CURIAM. Affirmed. Hagy v. State, 347 So. 2d 773 (Fla. 3d DCA 1977); Sharp v. State, 328 So. 2d 503 (Fla. 3d DCA 1976); Fitzgerald v. State, 227 So. 2d 45 (Fla. 3d DCA 1969).…
Authorities Cited
- Grant v. State, 35 Fla. 581 (Fla. 1895)
- Sharp v. State, 328 So. 2d 503 (Fla. 3d DCA 1976)
- Rice v. State, 243 So. 2d 226 (Fla. 4th DCA 1971)
- Harris Brown v. State, 92 Fla. 538 (Fla. 1926)