ABRAHAM DONALDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donaldson appeals his conviction for assault in a lewd, lascivious, or indecent manner on a female child under 14. The appellate court affirmed the conviction, rejecting arguments that the indictment was defective, the evidence insufficient, jury instructions improper, and jury procedure improper.
The trial court did not err in any of these respects. The indictment adequately alleged a violation of F.S. 800.04; the variance between allegation and proof was not fatal; the unrequested instruction was not a fundamental error; and the trial court's discretionary denial of the request to permit the jury to take the indictment to the jury room was not an abuse of discretion.
[1] An indictment sufficiently alleges a crime if it states a violation of a specific statute, even if imperfectly drafted.
[2] A variance between the allegations in an indictment and the proof presented at trial is not always fatal to a conviction.
Previewing 2 of 4 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“although it certainly is not a model it does allege a crime, viz: a violation of F.S. 800.04”
Establishes that the indictment, despite deficiencies in form, sufficiently alleged the crime charged
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Join FLexlaw to unlock all legal intelligenceDonaldson was indicted on two counts: sexual battery (count one) and assault in a lewd, lascivious, or indecent manner on a female child under 14 (cou…
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PER CURIAM.
Appellant seeks reversal of an adjudication of guilt of an assault in a lewd, lascivious or indecent manner on a female child under the age of 14 years in violation of F.S. 800.04 as a result of which he was committed for treatment and rehabilitation pursuant to F.S. 801.041 (apparently intending F.S. 801.091). He was initially indicted for two offenses in a two count indictment, the first count alleging a violation of F.S. 794.021(1) (apparently intending to allege a violation of F.S. 794.011(2)) and the second count in violation of F.S. 800.04. The trial court granted a motion for judgment of acquittal as to count one but denied the motion as to count two, the count of which he was convicted.
We have carefully considered the oral argument of able counsel in light of their briefs and the record on appeal.
By his first point appellant seeks our determination that the trial court erred in denying his pre-trial motion to strike count two and his subsequent motion in arrest of judgment, alleging that that count fails to state a crime under the laws of the State of Florida. We have carefully examined count two of the indictment and find that although it certainly is not a model it does allege a crime, viz: a violation of F.S. 800.-04.
Appellant next urges that the trial court erred in failing to grant his motion for a judgment of acquittal at the close of the state’s case upon the ground that the state failed to prove a material allegation of the indictment. We find that point to be without merit. Although there was a variance, not every variance between the allegation and proof is fatal. (Howlett v. State, 260 So. 2d 878 (Fla. 4th DCA 1972))
We also find that appellant may not prevail on his third point relating to the failure of the trial court to give an instruction because a careful review of the record reveals that the instruction the omission of which is now alleged to be error was never requested and the failure to give that particular instruction is not fundamental error. Finally, appellant urges that the trial court abused its discretion by denying his request that the jury be permitted to take the indictment to the jury room during deliberations. Fla.R.Crim.P. 3.400 provides that “The court may permit the jury, upon retiring for deliberation, to take to the jury room: (a) a copy of the charges against the defendant * * * However that rule is permissive and not mandatory. We do not find that the learned trial judge abused his discretion in denying appellant’s request.
AFFIRMED.
McCORD, C. J., BOYER, J, and MASON, ERNEST E., Associate Judge, concur.
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Taylor v. State, 672 So. 2d 580 (Fla. 1st DCA 1996)…a crowbar. While proof of a crime separate and distinct from the crime charged can constitute a fatal variance, see Rose v. State, 507 So. 2d 630, 632 (Fla. 5th DCA 1987), not every variance between allegation and proof is fatal. Donaldson v. State, 356 So. 2d 351, 352 (Fla. 1st DCA), cert. den., 362 So. 2d 1052 (Fla.1978). In Grissom v. State, 405 So. 2d 291 (Fla. 1st DCA 1981), we held that if the proof substantially conforms to the allegations in the information, so that the defendant is neither misled nor…
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Jefferson v. State, 391 So. 2d 747 (Fla. 5th DCA 1980)…. State, 376 So. 2d 429 (Fla. 1st DCA 1979), where the court disapproved an amendment to an information on the morning of trial which expanded the time within which the crime allegedly occurred. Howlett was cited with approval in Donaldson v. State, 356 So. 2d 351 (Fla. 1st DCA), cert. den. 362 So. 2d 1052 (1978) on the point that not every variance between allegation and proof is fatal, but there is no reference to a bill of particulars in Donaldson, and the Supreme Court in Beamon agrees that the variance i…
Authorities Cited
- LEE v. State, 260 So. 2d 878 (Fla. 1st DCA 1972)