Hoffman v. StateHoffman v. State
Steven Craig HOFFMAN, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fourth District.
H. Bryant Sims of Moore, Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.
Rоbert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
DAUKSCH, Judge.
This is an appeal from a conviction of unarmed robbеry. The appellant has alleged three errors only one of which we will comment upon.
The principal error alleged in this appeal is the trial сourt's granting of a motion to amend a statement of particulars at trial. We affirm.
Appellant was charged with armed robbery and false imprisonment. It was alleged in the information that these crimes took place on June 1, 1977. In response to a motion from the appellant the state filed a statement of рarticulars saying the crimes took place between 11:00 A.M. on June 1, 1977 and 11:00 A.M. on June 2, 1977. Fla. R.Crim.P. 3.140(n). The state also responded by properly demanding notice from the aрpellant as to his intention to rely upon an alibi defense. The appellant gave no notice of intention to rely upon alibi as a defense.
After thе opening statements at trial, which is after the jury was sworn and jeopardy attaches, the appellant pointed out to the court that during opening statеments the jury was told the crime occurred on May 31, 1977 and early on June 1, 1977. The appellant urged the court to require the state to prove the crime oсcurred on the date set out in the statement of particulars because "my defense through (sic) June 1, 11:00 A.M. and June 2, 11:00 A.M. is alibi." The court then inquired of appellant's cоunsel if he knew before trial that the proof was going to relate to an hour preceding 11:00 A.M., June 1, 1977 and he replied he did know that but that "I don't have to tell the state their defects in their case, until a jury is sworn."
The state moved to amend the statement of particulars which the trial court granted and the case proceeded to conviction of unarmed robbery.
The granting of the state's motion to amend the statement of particulars did not so prejudice the appеllant as to hinder *534 him in the preparation or presentation of his defense. To allow the defendant in a criminal case, with full knowledge of the crime alleged against him and with knowledge of a technical error of one day's date on a pleading, to wait in ambush for the state until the jury is sworn then spring his trap is tantamount tо asking the court to referee a game of hide and seek.
This is not to say the state should not be bound by its allegations and that prosecutors should not be diligent in thе preparation of their cases and that the accused persons should not be always fully advised as to what the state alleges. To the contrary wе abide by the principle that no trial, especially one where a person is accused by the state of a crime, should be by surprise attack. That did not occur in this case and we follow the general principle we set out in Howlett v. State,
The appellant has not demonstrated one bit of prejudice to him on account of the error оf one date in the information and statement of particulars. To the contrary, he was not prejudiced. First, he knew of the mistake before trial; second, аlthough his lawyer said at trial the appellant had an alibi he did not file the requisite notice of intention to claim alibi (and thus would have been prevented, most likеly, from presenting that defense because of his failure); third, although we have not been provided with a transcript of appellant's testimony[1] we know from the record he did testify and we know from a statement of counsel at trial that the "... heart of the defense. The defense is that this man, this Donald Benson, so-called victim, sold and attempted to sell to my client T.H.C." Thus the appellant did not claim an alibi at the time the crime was committed, but evidently claimed that it was some kind of drug transаction rather than a robbery. The jury found there was a robbery. The appellant received a fair trial. The conviction and sentence are
AFFIRMED.
CROSS, J., concurs.
MOORE, J., concurs specially with opinion.
MOORE, Judge, concurring specially.
I cоncur in the conclusion reached by the majority because I feel that Howlett v. State,
In State v. Beamon,
"When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the proseсution is limited, if objection be made, to proof of an offense occurring on that date and no other under that particular Information; ... Nor may the Statе remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced aftеr presentation of the evidence." at 378, 379.
Additionally, Fla.R.Crim.P. 3.140(n)[1] provides for a statement of particulars upon *535 motion of the defendant. The last sentence of the rule states: "Reasonable doubts concerning the cоnstruction of this rule shall be resolved in favor of the defendant." Our Standard Jury Instructions in Criminal Cases, as approved by the Supreme Court, provide that the effect оf a statement of particulars is to require the State to prove the exact date beyond a reasonable doubt.[2]
Notwithstanding the above, the modеrn trend is to excuse technical defects which have no bearing on the substantial rights of the parties. Lackos v. State,
The statement of particulars specified the crime to have occurred between the hours of 11:00 A.M. on June 1 and 11:00 A.M. on June 2. The proof showed the crime to have occurred at approximately 1:00 A.M. on June 1. I fail to see where any substantial rights of the appellant were prejudiced аs a result of this technical defect contained in the statement of particulars.
In my opinion, however, we should clearly acknowledge that we will not condone the manner in which the statement of particulars was handled in this case, where the slightest prejudice to a defendant may be shown. In attempting to dеprive one of his liberty by reason of alleged criminal activity, it is not too much to require the State to be technically correct. Here, had the Statе merely referred to the time indicated on the victim's statement as given to an investigating police officer, the error in the statement of particulars would not have occurred.
The other matters raised by the appellant are without merit. Accordingly, I concur in the conclusion reached by the majority.
NOTES
[1] We could order it transcribed and filed here but deem that unnecessary. Fla.R.App.P. 9.200(f).
Notes
[1] "3.140(n) Statement of Particulars. The Court, upon motion, shall order the prosecuting attorney tо 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, dаte, 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."
[2] Fla.Std. Jury Instr. (Crim.) 2.09.