State v. JeffersonState v. Jefferson
The petitioner in this case seeks review and reversal of thе decision of the Fifth District Court of Appeal in Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980). Conflict is alleged between Jefferson and the cases of Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972) and Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972). We have jurisdiction pursuant to
Respondent was charged by information with and convicted by a jury of one count of burglary and one count of grand larceny. On appeal to the district court the respоndent contended that the trial judge erred by not granting his motion for acquittal. Agrеeing with respondent‘s contention, the district court reversed the trial court and remanded the cause with directions for the trial court to grant a judgment of acquittal.
The information charged that respondent committed the offenses between June 18 and June 21, 1977. Defense counsel requested morе specificity in the charge so the state filed an amended statement of particulars specifying that the offense occurred “within five hours either side of 1:00 a.m. on June 21, 1977, in Titusville, Brevard County, Florida.”
The proof adduced at trial showed that the store in question was in fact burglarized late one Saturday night and early one Sunday morning between June 19 and June 21, 1977. The trial judge took judicial notice that June 19, 1977 was Sunday, June 20 was Monday and June 21 was Tuesday.
Respondеnt moved for a judgment of acquittal based on the State‘s failure to prove that a crime was committed at the time specified in the statemеnt of particulars. The trial judge denied the motion and was reversed by the distriсt court. We are thus presented with the question of whether a bill of partiсulars specifying an exact date upon which an offense ocсurred limits the prosecution, if an objection is made, to proof of an offense occurring only on that date, under the particular informatiоn. This is a question we resolved indirectly in State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), in which we said that “... the effect of such a specification of date in a bill of particulars is to narrow the Indiсtment or Information as to the time within which the act or acts allegedly constituting the offense may be proved.” 298 So.2d at 379 (Citations omitted.) We qualified our holding in Beamon, however, when we decided the case of Hoffman v. State, 397 So.2d 288 (Fla. 1981). The district court in Hoffman held that a statement of particulars can be amended if such amendment will not prejudice the defendant. We felt, as did the district court, that the issue of prejudice to the defendаnt should be considered.
There is a significant distinction, however, between the facts of Hoffman and those in the instant case. In Hoffman the state moved to amend the statement of particulаrs, which motion the trial court granted, and the case proceedеd to conviction.
The failure of the prosecutor to move to amend the statement of particulars to conform with the proof adduced at trial sufficiently distinguishes the instant case from Hoffman so that Hoffman does not apply.
The Fifth District Court of Appeal decided this сase based on State v. Beamon. We would add only that Beamon has been qualified by Hoffman, but to utilize the rationale of Hoffman, a motion to amend must have been made by the prosecutor during the trial. Absent this motion, Hoffman is distinguishable and Beamon controls.
The cases of Howlett v. State and Perlman v. State, cases which allegedly conflict with the dеcision of this Court in Hoffman v. State, are distinguished from Hoffman on the same basis as is the instant case. We approve the decision of the district court and remand this cause to the district court for further remand to the trial court with instructions to grant a judgment of acquittal.
It is so ordered.
ALDERMAN, C.J., and BOYD, OVERTON, SUNDBERG and McDONALD, JJ., concur.