STATE OF FLORIDA, APPELLANT,
v.
WILLIAM MICHAEL CASERTA AND JOHN D. BENSON, APPELLEES
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The State appealed the trial court's refusal to permit amendment of an information charging defendants with drug offenses. The appellate court reversed, holding that the proposed amendment did not prejudice the defendants and should have been allowed under the Florida Rules of Criminal Procedure.
The trial court erred in refusing to permit the amendment. The proposed amendment did not change the facts of the case, did not prejudice the defense, charged the same statute, and was filed at least 30 days before trial, therefore the amendment should have been permitted under Florida Rules of Criminal Procedure 3.140.
[1] A trial court errs in refusing to permit the State to amend an information when the amendment does not change the facts or the defense and the defendant is not prejudiced…
[2] Technical defects in an information are to be excused unless prejudice is shown.
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Join FLexlaw to unlock all legal intelligence“We cannot see how this amended information would have changed the facts, or the defense, in the case at bar and the appellees would not have been prejudiced thereby.”
Establishes the court's reasoning that no prejudice would result from the amendment, which is the key test for allowing technical amendments.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendants were charged in an information with two counts related to marijuana possession: unlawful delivery of over 100 pounds of cannabis and unlawf…
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LETTS, Judge.
This interlocutory appeal stems from a refusal by the trial judge to permit the State to amend the information. We reverse.
We have no quarrel with the trial judge’s order granting the motion to suppress the evidence. Judge Sample expressly found that the officers were lying about the facts of their alleged probable cause to search the hangers for contraband contained iri two aircraft. However, we feel his understandable disgust with the authorities may be what prompted him to refuse the State’s motion to amend the information and in this he was in error. The original information contained two counts and read as follows:
I.
“. . . did then and there unlawfully deliver a controlled substance, to wit: CANNABIS, commonly known as marijuana, in an amount in excess of One-Hundred (100) Pounds, in violation of Florida Statute 893.13(l)(a);”
II.
“. . . did then and there unlawfully have in their actual or constructive possession a controlled substance, to wit: CANNABIS, commonly referred to as marijuana, in an amount in excess of One-Hundred (100) Pounds, in violation of Florida Statute 893.13(l)(a)2;” The requested amended information deleted Count I and amended Count II to read as follows:
II.
“. . . did then and there unlawfully possess with the intent to sell or deliver a controlled substance, to wit: CANNABIS, commonly known as marijuana, in an amount in excess of One-Hundred (100) Pounds in violation of Florida Statute 893.13(l)(a)2;”
We cannot see how this amended information would have changed the facts, or the defense, in the case at bar and the appellees would not have been prejudiced thereby. In such event technical defects are to be excused unless prejudice is shown. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), Lackos v. State, 339 So. 2d 217 (Fla.1976). The statute the defendants were charged under was the same [§ 893.13(l)(a)(2) Fla.Stat.1977]1 and the amendment did not prejudice nor surprise the defendants. Nor was the original motion to amend filed on the morning of the trial, same being filed at least 30 days prior thereto.
Accordingly, we are of the view that the amendment to the information should have been permitted under Fla.R.Crim.P. 3.1400).
REVERSED AND REMANDED IN ACCORDANCE HEREWITH.
DOWNEY, C. J., and ANSTEAD, J., concur. . We assume, however, that the original information should have read Fla.Stat. 893.13(l)(a)2 in Count I and Fla.Stat. 893.13(l)(b) in Count II.
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Brady Otis Byrd v. State, 380 So. 2d 457 (Fla. 1st DCA 1980)…ed. If a defendant goes to trial without objecting, he waives his right to object to a failure to arraign or to an irregularity in the arraignment. Fla.R.Crim.P. 3.160(b). [*461] See also Lackos v. State, 339 So. 2d 217 (Fla.1976); State v. Casería, 358 So. 2d 1144 (Fla. 4th DCA 1978). Moreover the right of an accused to be furnished a copy of the indictment or information may be waived. McNeal v. Culver, 113 So. 2d 381 (Fla.1959), rev. on other grounds, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445. We must assu…
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State v. Weed, 373 So. 2d 42 (Fla. 1st DCA 1979)…D and the cause REMANDED with directions that the appellees may be brought to trial within the period prescribed by Rule 3.191(g), Florida Rules of Criminal Procedure. MELVIN, J., concurs. ROBERT SMITH, Acting C. J., dissents. . State v. Caserta, 358 So. 2d 1144, 1145 (Fla.4th DCA 1978) holding state entitled to amend information charging delivery and possession of marijuana to charge possession with intent to sell or deliver, where statute defendants were charged under was same, stating: “We cannot see how…
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Cappetta v. State, 549 So. 2d 205 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. State v. Garofalo, 453 So. 2d 905 (Fla. 4th DCA 1984); State v. Caserta, 358 So. 2d 1144 (Fla. 4th DCA 1978); see Harris v. State, 229 So. 2d 670 (Fla. 3d DCA 1969), cert. denied, 237 So. 2d 752 (Fla.1970).…
Authorities Cited
- Michigan v. Tucker, 417 U.S. 433 (U.S. 1974)
- Lacros v. State, 339 So. 2d 217 (Fla. 1976)