"Appellant was charged with three counts of lewd or lascivious battery on a child over twelve years old. After the victim testified, the state amended the information, over appellant’s objection, to change one count from oral to digital penetration. Thus, we are asked to determine if the mid-trial amendment constituted prejudice to appellant. We find that in these circumstances, where the amendment changed an “essential element” of the charged crime and was not merely a clarification of some details, the amendment prejudiced appellant and thus we reverse count III. We further find the state’s closing argument improperly asked the jury to determine if the victim was lying as the test for determining appellant’s guilt, but we nevertheless affirm because the issue was not properly preserved."
Simbert v. State, 4D16-1633 (Fla. 4th DCA Aug. 23, 2017)
Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
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