Robert L. WARREN, Appellant, v. STATE of Florida, Appellee.
Nos. 92-3338, 92-3340 to 92-3342, 92-3344 and 92-3345.
District Court of Appeal of Florida, First District.
April 12, 1994.
635 So. 2d 122
Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, for appellee.
BENTON, Judge.
Robert L. Warren appeals his conviction for grand theft of the third degree.1 Because appellant was prosecuted in violation of the requirement that “the accused shall, upon demand, be informed of the nature and cause of the accusation against him,”
The information the State filed against Warren seemed to allege that he had stolen money from his employer, or at least helped himself to an unauthorized loan. The information alleged that he:
did knowingly obtain, use, or did endeavor to obtain or to use UNITED STATES CURRENCY of the value of $300 or more, the property of CHANNEL 40 TELEVISION STATION, with the intent to either temporarily or permanently deprive the other person of a right to the property or a benefit therefrom or to appropriate the property to his or her own use or to the use of any person not entitled thereto, contrary to
Section 812.014(2)(c)(1), Florida Statutes .
By his plea of not guilty, appellant exercised his right to put the State to its proof. He also complained that he did not know exactly what he stood accused of.
The trial court twice denied appellant‘s verified motion to dismiss or, in the alternative, motion for statement of particulars.3 Orally argued on March 25, 1992, and again on May 20, 1992, this pleading asked the trial court to require the State to specify when the theft of money had allegedly occurred, adding “it is obvious that if the State does not really mean ‘currency,’ but wishes to prove that Defendant took some other property, then Defendant must be so notified.”
Evidence at trial established that Warren worked for a television station; that among his duties as a salaried employee4 was to sell advertising; and that he had arranged for advertising for certain businesses at no charge to them. Warren testified that he offered free advertising in hopes that the recipients would be so encouraged by the results that they would be persuaded to purchase advertising from his employer in the future.5
Learning what Warren had done, Warren‘s employer discharged him and notified law enforcement authorities. At trial, Warren conceded that he had not obtained his employer‘s approval to offer advertising at no charge. There was no evidence, however, that Warren received any money or other consideration from the businesses, or any extra remuneration from his employer on account of the advertising in controversy.
At the first hearing on the alternative motion for statement of particulars, defense counsel conceded that “if he is resting on the fact that he thinks a salary was taken and that‘s the money he is talking about, then I certainly agree, he has traversed and that‘s a factual issue.” (R. at 570.) But the prosecutor never said that he intended to prove that appellant was guilty of theft in accepting his salary, and the case was not tried on that theory. Instead the trial featured information about production and other costs to the television station, and the prosecutor argued for conviction on the basis of “the costs that
At the charge conference the question of just what property the appellant was alleged to have taken again arose. Defense counsel, whose earlier request for “an instruction that the property involved is supposed to be cash” (T. at 178) had been denied, objected to the giving of the standard jury instruction on the value of written instruments other than checks, drafts, or promissory notes.
MR. FOREHAND [defense counsel]: I don‘t believe we are dealing with written instruments... .
MR. POITINGER [prosecutor]: Well, I don‘t agree ... We have introduced some instruments, and it may well be that the jury is going to be concerned — I think the argument has been made by Defense Counsel as to how much out of pocket have you lost and so forth. I think this says to us that when we are dealing with other instruments that create certain valuable legal rights, that the jury is to look to the amount of greatest economic loss that the owner of the instrument can suffer... .
On this point, the prosecutor prevailed,6 even though the only “written instruments” in evidence were unenforceable contracts or interoffice memoranda calling for free advertising. The proof did not show, moreover, that these papers had been purloined.
On appeal, the assistant attorney general suggested a range of possible subjects of theft,7 arguing that the conviction should be upheld on the basis, inter alia, of appellant‘s having diminished his employer‘s revenues. But the proof did not establish lost revenues, as opposed to increased expenses, and any such “currency” never became the property of the supposed victim of the theft.
It is “elemental that an accused cannot be convicted of an offense for which no charges have been brought.” Brownlee v. State, 427 So. 2d 1106, 1108 (Fla. 3d DCA 1983). “The general rule is where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment [or information.]” Long v. State, 92 So. 2d 259, 260 (Fla. 1957). “No principle of criminal law is better settled than that the State must prove the allegations set up in the information or indictment.” Lewis v. State, 53 So. 2d 707, 708 (Fla. 1951).
The record here reveals much more than the mere “possibility that the defendant may have been misled or embarrassed in the preparation or presentation of his defense.” Sharp v. State, 328 So. 2d 503 (Fla. 3d DCA 1976). Even now that the trial has concluded, the State has difficulty articulating with precision the basis for the conviction. The present case is just the sort Justice Terrell warned against, when he wrote that “to let down the bar of strictness ... would be conducive to looseness in criminal prosecutions that might become intolerable to due process.” Lewis v. State, 53 So. 2d 707, 708 (Fla. 1951).
We therefore reverse appellant‘s convictions and the order revoking probation and community control.
ERVIN and BARFIELD, JJ., concur.