4DCA: Mid-Trial Amendment to Information Requires Reversal

"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)

https://edca.4dca.org/DCADocs/2016/1633/161633_DC08_08232017_085904_i.pdf

Broward Co.

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s