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Grissom v. State

District Court of Appeal of Florida, First District
Oct 30, 1981
405 So. 2d 291 (Fla. Dist. Ct. App. 1981)

Summary

upholding conviction for grand theft, upon an information alleging the unlawful taking of a "cow," despite proof of the unlawful taking of a bull calf

Summary of this case from Atwell v. State

Opinion

No. YY-489.

October 30, 1981.

Appeal from the Circuit Court, Dixie County, L. Arthur Lawrence, Jr., J.

Theodore E. Mack, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Lawrence A. Kaden, Asst. Atty. Gen., for appellee.


Appellant seeks review of a judgment of conviction and sentence for the offense of grand theft, upon an information alleging the unlawful taking of a "cow." At trial the state proved the unlawful taking of a male calf; appellant contends that the proof at trial thus did not conform to the allegation of the charging document, so as to preclude conviction and sentence. We find that in the circumstances of this case the variance is immaterial, and we affirm the order appealed.

Of course, the proof at trial must substantially conform to the allegations of the charging document, in order that the defendant not be misled and thereby prejudiced, and to insure against reprosecution for the same offense. See, e.g., Robinson v. State, 69 Fla. 521, 68 So. 649 (1915); cf., Fla.R.Crim.P. 3.140( o). However, where a variance between the allegations and proof is not such as to have misled the defendant or subject him to a substantial possibility of reprosecution for the same offense, the variance is immaterial and does not preclude conviction. See Hagy v. State, 347 So.2d 773 (Fla. 3d DCA 1977); Ricks v. State, 224 So.2d 413 (Fla. 3d DCA 1969). In the circumstances of the present case appellant is not subjected to a substantial possibility of reprosecution, and it is clear that he was not misled or prejudiced in his defense: appellant admitted the "taking," there was no dispute as to the animal taken, and appellant's counsel repeatedly referred to the male calf as a "cow." We therefore conclude that in this case the variance was immaterial and does not preclude conviction.

Appellant cites Higginbotham v. State, 78 Fla. 114, 82 So. 601 (1919), and Mobley v. State, 57 Fla. 22, 49 So. 941 (1909), but these authorities are unavailing in the present case. Neither Higginbotham nor Mobley involved circumstances similar to this case, and the decision in Mobley is expressly predicated upon a larceny statute which distinguishes "cow" and "steer;" the present theft statute, § 812.014, Florida Statutes, is dissimilar and without any such specification or distinction.

Accordingly, the order appealed is affirmed.

ERVIN and JOANOS, JJ., concur.


Summaries of

Grissom v. State

District Court of Appeal of Florida, First District
Oct 30, 1981
405 So. 2d 291 (Fla. Dist. Ct. App. 1981)

upholding conviction for grand theft, upon an information alleging the unlawful taking of a "cow," despite proof of the unlawful taking of a bull calf

Summary of this case from Atwell v. State

charging document alleged the defendant stole a cow (a female bovine); the evidence demonstrated that he stole a male calf

Summary of this case from Vitko v. United States

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 prejudiced, any error is harmless.

Summary of this case from Taylor v. State
Case details for

Grissom v. State

Case Details

Full title:GLENN ELBERT GRISSOM, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Oct 30, 1981

Citations

405 So. 2d 291 (Fla. Dist. Ct. App. 1981)

Citing Cases

Vitko v. United States

" Id. at 4. He notes that under Florida law, "deviations from the facts alleged in the charging document…

Taylor v. State

Donaldson v. State, 356 So.2d 351, 352 (Fla. 1st DCA), cert. den., 362 So.2d 1052 (Fla. 1978). In Grissom v.…