text:
    John James HORZEMPA v. STATE.
    5 Div. 536.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied March 17, 1981.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant (defendant) was tried under an indictment charging him with the possession of marijuana, a controlled substance. A jury found him guilty of “possession of marijuana for his personal use” and fixed his punishment at a fine of one thousand dollars. The court added to his punishment imprisonment in the Lee County Jail for twelve months and sentenced him accordingly.

On a judicial determination of indigency, counsel was appointed by the court, who represented him throughout the proceedings in the trial court and continues to represent him on appeal. During the trial, in many instances the defendant conducted himself as if he were his own advocate, and on appeal he has filed a brief on behalf of himself, which we consider along with the brief filed by his attorney and the brief filed by appellee. Defendant did not testify in the case but called his attorney as a witness for defendant and interrogated him as to the description and location of the premises where, according to evidence for the State, the marijuana was found.

In the brief of counsel for appellant there are four issues expressly presented, which we will hereafter separately consider. In the pro se brief, two issues are expressly presented; neither of which is in the exact language of any of the issues stated in the brief of counsel for appellant, but both of them are substantially discussed in one or both of such briefs and will be considered as we consider brief of appellant’s counsel in the order of the issues presented therein.

According to the undisputed evidence, on July 24, 1979, a large amount of marijuana was found by deputies of the sheriff of Lee County in a. house and near the house “on the left traveling South on Lee County Road # 43 from the intersection of Lee County Road # 43 and Lee County # 12” in Lee County. There was no evidence that the house had been occupied recently by anyone other than defendant. There was substantial evidence that he had been seen there on “numerous occasions” prior to July 24, 1979, primarily “in his front yard, and also, pulling out onto the road in his dump truck from the house.” Although the evidence is not as definite as to time and place as to defendant’s connection with the house and adjoining premises as it possibly should be, it appears that it is sufficient to show such an exclusive dominion thereover as to afford a reasonable inference that he was in knowledgeable possession of the premises, including the marijuana. There is no contention to the contrary.

The first issue presented by appellant’s counsel is whether the trial court erred in refusing to grant defendant’s motion to dismiss the case because of his alleged failure to receive a speedy trial. He raised the point by a motion to dismiss filed on the day of trial, May 20,1980, which was then overruled after a hearing at which no evidence was presented but a colloquy transpired among the court, two attorneys for the State, defendant’s attorney and defendant himself, in which it seems that it became understood among them that there had been two previous firm settings of the case for trial, one for November 1979 and the other for March 31, 1980. Minute Entries show the following:

“11- -79. On Motion of the District Attorney, not resisted by the defendant, this case is hereby continued until next term of Court.
“3-31-80. On motion of the District Attorney, this case is hereby continued to the Spring, 1980 Term of this Court.”

There were allusions to inconvenience, anxiety, complications in regard to work and the intervening illness and death of defendant’s great-grandfather, as well as to the absence at the time of two witnesses by whom defendant wished to show that there were persons in addition to defendant “who frequented the premises of the house that was searched.” It was undisputed that defendant was not confined but was free on bond during substantially all of the time between his arrest and the day of trial. During the colloquy, the District Attorney stated as to the continuances of the case:

“With the consent of the defendant’s attorney, each time. I’ll be glad to get on the witness stand and testify about that.”

No issue was taken as to such statement. Just before the court overruled the Motion to Dismiss, counsel for the defendant and counsel for the State stated respectively:

“MR. JONES: I have nothing else to present.
“MR. WILKES: I would just submit that the case has been continued but it was not intentionally continued to cause any hardship or detriment to the defendant.”

Continuances of a criminal case need not be “to cause any hardship or detriment to the defendant” in order for them to be factors in a denial of a speedy trial, but more is needed in support of a motion to dismiss for such an alleged denial than is to be found in the record proper and in the transcript in the instant case. No authority cited by appellant purports to be based upon facts similar or analogous to the circumstances of the instant case. Appellee aptly refers to the “excellent opinion written by Judge Bowen,” to which we also refer for recent collation of authorities and guiding principles of law on the subject. Wade v. State, Ala.Cr.App., 381 So.2d 1057, cert. denied, 381 So.2d 1062 (1980).

The next issue presented in the brief of counsel for appellant is whether the court erred in overruling defendant’s motion to suppress the evidence seized on the basis that there was a “failure of the search warrant to properly describe the premises to be searched.” The search warrant described the person and premises to be searched as follows:

"... the person and premises of John Doe, alais [sic], whose name is unknown, a white male, approximately 30 years of age, 6'0" tall, 185 pounds, wearing a black beard and hair, said residence in the second building on the left traveling South on Lee County Road # 43 from the intersection of Lee County — Road # 43 and Lee County Road # 12 in Lee County, Alabama, said search to include all persons, vehicles and out buildings located on above described premises.”

On the hearing of the Motion to Suppress, a mass of evidence, including more than a dozen pictures, was presented by defendant in an effort to show that the building searched and in which some of the alleged marijuana was found was not “the second building on the left traveling south on Lee County Road # 43” from its intersection with Lee County Road # 12. Defendant showed in one sense at least that there was more than one building in the designated area between the building searched and the intersection. In doing so defendant and his attorney emphasized the word “building” and the words “second building” with little or no regard for the preceding word “residence” in the warrant or for the word “residence” as it appears twice in the affidavit upon which the warrant was based and twice in the introductory clause of the warrant, signed by a circuit judge of the Circuit Court of Lee County. The prosecution, on the other hand, emphasized the word “residence in an effort to show, and did show, we think, that the buildings in the area between the building searched and the building adjacent to the intersection would not be classified as residences “on Lee County Road # 43.” Some were too far off the road; some too small for a residence; one was an old church building that had been diverted into a sign shop. A picture of the building that was searched shows distinctly that it was a residence, a residential building, though dilapidated and undesirable. It has a front chimney as if to a living room or bedroom, a back chimney as if to a kitchen, a porch with a roof, a house with an A-frame roof, windows with window panes in them, a building which in its outward appearance indicates unquestionably that it was built for a residence. The description of the building in the warrant was adequate; it did not and could not have led to a mistake as to the identity of the building to be searched. All of the marijuana seized was either in the building or on the premises of the building, some of it still growing, and some of it had been harvested by cutting. As stated in Yielding v. State, Ala.Cr.App., 371 So.2d 951, 958, writ denied, Ex parte Yielding, 371 So.2d 962 (1979), “all that is needed to meet the requirements of specificity as regards a search warrant authorizing the search of a residence for specific goods is that a prudent officer is able to locate the property with reasonable certainty from the face of the warrant.” This the officers could do and did.

The third insistence on a reversal contained in the brief of counsel for appellant is that the court was in error in denying defendant’s motion to suppress evidence seized in the search of the residence on the ground that the search warrant “did not properly describe the individual alleged to be involved with the premises.” Code of Alabama 1975, § 15-5-3 provides:

“A search warrant can only be issued on probable cause, supported by an affidavit naming or describing the person and particularly describing the property and the place to be searched.”

It appears from the evidence on the hearing of the Motion to Suppress evidence as to the marijuana found in the house and on the premises, that there was a variance between the description of “John Doe” as found in the search warrant and the supporting affidavit and a description of the defendant, the major variance being that defendant lacked about six inches of being as tall and about thirty pounds of being as heavy as the height and weight of defendant. In other respects the description was correct. Assuming, but not deciding, that such discrepancy would have invalidated the search of the person of defendant, it does not necessarily follow that it should invalidate the search of the house and the premises made at a time when defendant was not present, and in a manner that did not constitute a trespass into the building or upon the premises, upon which there was no forcible entry. There may be some question as to whether there was strict adherence to the language of Section 15-5-3, but we have held that as to a warrant for the search of premises, it is better, as a general rule, that the search warrant contain the name [or, as permitted by § 15-5-3, a description] of the owner or occupier of the premises to be searched, but that there is no constitutional requirement that it do so. Cabble v. State, Ala.Cr.App., 347 So.2d 546, cert. denied, 347 So.2d 551 (1977).

Although the warrant directs the search of the person and the premises, there was never any search of a person pursuant to the warrant, which was obviously contemplated by the warrant in the event the person described in the warrant was on the premises at the time of the search. We fail to see any logical basis for a complaint by defendant that there was any inaccuracy in the description in-the warrant of the person to be searched. Such rationalization finds some support in the following rationale:

“In the absence of statute, the requirement of a description of the person ordinarily applies only where there is to be a search of the person — it is not required that the owner or occupant of premises be named or described in a warrant for the search of such premises. Similarly, a warrant for the search of premises only, and not for the search of a person, is not invalidated by virtue of the fact that it designates the owner of the premises as ‘John Doe,’ nor by the fact that the name of the owner of the premises is incorrectly inserted in the warrant.” 68 Am. Jur.2d Searches and Seizures, § 79.

The final insistence for a reversal in the brief of appellant’s counsel is that the court committed reversible error “when it allowed the introduction into evidence of items not mentioned in the return of the search warrant.” The return of the search warrant shows that it was executed and that the following described items were found:

“Four Stalks of Marihuana Plants, Ten Hand Rolled Cigarett Butts, Three Glass Vials with Plastic Caps Containing Powder Residue Two Plastic Bags Containing Seeds and Residue, One Plastic Bag Containing Small Amount of Marihuana Residue, One Cellophane Cigarett wrapped Containing Marihuana, One Hundred and Ten Growing Marihuana Plants.”

We find no material difference between the items described in the Return and those described in the evidence, other than that there were references to other items that were in or on the property that would generally be expected of any witness who is testifying as to the description or location of contraband. In his argument, counsel states:

“For the failure of the Search Warrant to so state with particularity the items seized, those items not specifically called out in the Return of the Search Warrant should not have been admitted into evidence and the defendant’s Motion to Suppress should have been granted.”

The ruling of the court on the pretrial Motion to Suppress should be considered as separate and distinct from any ruling on the trial as to the admission of evidence on the ground that such evidence did not embrace the items designated in the Return of the Search Warrant. Our attention is not called to any definite ruling or rulings of the trial court as to the matter complained of in the final insistence on a reversal of appellant’s counsel and we find none.

In the pro se brief of appellant, he complains that the search warrant does not follow the form prescribed by Code of Alabama 1975, § 15-5-6 in that it does not include the language “in the daytime (or at any time of the day or night, as the case may be) to make” the search and that there was a failure to comply with § 15-5-8 in that there was a failure to “state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night.” It seems clear that the purpose of the quoted language in the two sections of the Code is to protect one against a search in the nighttime that should be made in the daytime. The undisputed evidence in the instant case is that the search was in the daytime. This particular complaint of appellant is not valid.

A large part of appellant’s argument in his pro se brief as it pertains to the only other issue presented by him has heretofore been treated in connection with our resolution of the issues presented in brief of his counsel. In addition, he argues that the affidavit upon which the search warrant was based does not show sufficient probable cause for belief that marijuana was in the house or on the premises involved to justify the issuance of the warrant. The affidavit was made by Lt. Ronnie Watkins, who personally appeared before Circuit Judge G. H. Wright, Jr., and swore:

“That a reliable informant working under the direction of affiant has on several occasions observed a quantity of Marijuana at above described residence in possession of above-described white male. That said informant has within the past two days observed marijuana plants growing in a garden at the rear of the above-described and additional Marijuana plants growing in the woods approximately one hundred yards to the rear of the above-described residence. That said informant has within the past three days observed Marijuana in the residence described above. That said informant has over the past four months given affiant information that has proven to be true and correct and has led to three arrests on drug violations.”

On intensive and extensive interrogation of Lt. Watkins by defendant, it seems that defendant obtained some comfort out of the fact that Lt. Watkins was not in more constant contact with the informant than his testimony showed. The interrogation was interspersed by efforts to obtain a revelation from Lt. Watkins as to the identity of the informant, but which properly was never made. Our review of the evidence does not convince us that the Circuit Judge trying the case, a different Circuit Judge from the one issuing the warrant, was not rightfully satisfied, as his ruling indicates, that the informant was reliable and that under all the circumstances there was probable cause for believing, as Judge Wright concluded, that marijuana was at the time of the issuance of the warrant, on the same day it was executed, both in the house and on the premises searched pursuant to the warrant. Among the cases cited by appellant in support of his second insistence is Horzempa v. State, 52 Ala.App. 153, 290 So.2d 217 (1973), aff’d 292 Ala. 140, 290 So.2d 220 (1974), in which the trial court was reversed by reason of the inadequacy of the affidavit purporting to support the issuance of a search warrant. The appellant in that ease is the same as the appellant in the instant case; the trial court in both cases is the same; the charge in that case is the same as the charge in this case. However, the result in this case should not be the same as in that case, for in it the affidavit “failed to give sufficient underlying circumstances from which the informants exhibit probable cause that the drugs are where they claimed them to be.” (52 Ala.App. 153, 290 So.2d at 220), while in the instant case the affidavit of Lt. Watkins established the reliability of the informant and the personal knowledge of the informant as to the actual existence of harvested marijuana in the house within the preceding three days and of growing marijuana on the premises within the preceding two days, so located and of such quantity and nature as to indicate a connected illegal operation as to the particular prohibited substance to continue to and, if not halted, beyond the day of the search. Neither Horzempa, supra, nor any other authority that has come to our attention supports appellant’s contention that the Motion to Suppress should have been granted.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his/ opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte John James HORZEMPA. (Re: John James Horzempa v. State of Alabama).
    80-446.
    Supreme Court of Alabama.
    May 1, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

' TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: PER CURIAM. SUNDBERG, Chief Judge,

text:
    Mack C. RUFFIN, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 55684, 56741.
    Supreme Court of Florida.
    March 26, 1981.
    Rehearing Denied May 15, 1981.

      Jack 0. Johnson, Public Defender and Douglas A. Lockwood, Asst. Public Defender, Bartow and W. C. McLain, Spec. Asst. Public Defender, Fort Myers, for appellant.
    Jim Smith, Atty. Gen. and William I. Munsey, Jr. and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Mack C. Ruffin, Jr. appeals his convictions of murder in the first degree and sexual battery of Karol Hurst and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. Having reviewed the record and considered the issues raised by Ruffin, we find no reversible error.

Intending to steal an automobile to use in a convenience store robbery, on February 21,1978, Ruffin and his companion, Freddie Lee Hall, drove to a Pantry Pride grocery store parking lot. There they stole an automobile and at gunpoint abducted its owner, Karol Hurst, who was twenty-one years old and seven months pregnant. They drove their victim to a heavily wooded area where they sexually abused her. Although she pleaded for her life and offered Ruffin and Hall a check for $20,000, she was pistol whipped on her head, neck, shoulder, and body, was robbed of her pocketbook, wallet, and checkbook, and was shot to death with a .38 caliber pistol in the back of her head while lying face down on the ground.

After the murder of Mrs. Hurst, Ruffin and Hall drove the stolen car to the convenience store which they intended to rob. Pretending to be customers, they purchased a teddy bear and two bundles of socks. Suspicious of these two men, the store manager asked a customer to call the sheriff’s department. Without attempting the planned robbery, Ruffin and Hall left the store. Outside Deputy Coburn, holding his shotgun, was standing by his patrol car. A customer in the store observed Mrs. Hurst’s car parked near the store. The store manager telephoned the sheriff’s substation across the street as soon as the two left the store. She then heard what she thought to be a gunshot. Immediately thereafter, Deputy Coburn was found shot lying on the ground. Beside him were the .38 caliber pistol that had killed Mrs. Hurst, the teddy bear, and the socks. The deputy who arrived at the scene and found Coburn’s body saw Mrs. Hurst’s car speeding away from the scene. Another deputy was dispatched to pursue this automobile. A high speed chase ensued, and the passenger in the car being pursued fired three shots at the deputy. This automobile was then abandoned, and the two were pursued on foot and were finally apprehended. In the automobile were found a .357 magnum pistol belonging to Deputy Coburn, Mrs. Hurst’s handbag, groceries which she had purchased just pri- or to her abduction, and Ruffin’s fingerprint.

Mrs. Hurst’s body was found with a bullet hole through the back of her head, a deep abrasion below the right chin, two deep abrasions and a large bruise in the shoulder area, an abrasion and contusion over the right shoulder, four abrasions and two large contusions on the back of the neck, and a contusion to the right nipple which the pathologist testified would have been quite painful. The cause of death was the bullet that entered the back of the victim’s head and traversed her brain. The pathologist stated, however, that the death would not necessarily have been instantaneous.

Ruffin confessed that he and Hall had stolen the car to use in a convenience store robbery, had abducted Mrs. Hurst, had raped her, and that Hall had shot her to death.

Ruffin was indicted for first-degree murder, sexual battery, kidnapping, grand larceny, and robbery. The latter three charges were nolle prossed, and he was tried and convicted of murder in the first degree and sexual battery of Mrs. Hurst. Prior to his sentencing, he had also been convicted and sentenced to life imprisonment for the killing of Deputy Coburn. This conviction was affirmed by the District Court of Appeal, Fifth District, Ruffin v. State, 390 So.2d 841 (Fla. 5th DCA 1980).

He argues first that his conviction should be reversed because the trial court erred in refusing to grant a mistrial after certain allegedly prejudicial remarks were made by the prosecutor in closing argument and because the court did not poll the jury as to whether they had seen a particular headline of a newspaper located in a newsstand near where the jurors were lunching. These contentions are completely without merit and warrant no further discussion.

Ruffin also challenges his conviction on the basis that the trial court erred in admitting into evidence testimony of other offenses committed by him contrary to the “Williams rule.” Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). He concedes that this challenged evidence tended to prove identity in that it linked him to the victim’s automobile, explained where the murder weapon was located, and how he was apprehended; however, relying upon Smith v. State, 344 So.2d 915 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (1977), he argues that this evidence should not have been admitted because it was not necessary to the prosecution of this case and that the prosecutor was overzealous in utilizing it. He contends that under the “ Williams rule” such evidence, to be admissible, must be not only relevant but also necessary to the prosecution.

The State counters that this evidence which was clearly relevant to proving the identity of Ruffin was properly admitted into evidence. It contends that the test for the admissibility of such evidence is relevancy, not necessity. We agree with the State’s contention, and, to the extent that the language of the district court’s opinion in Smith v. State is inconsistent with our holding, it is disapproved.

In Williams v. State, we announced a broad rule of admissibility based upon relevancy. Necessity has never been established by this Court as an essential requisite to admissibility. In Williams, we declared that any fact relevant to prove a fact in issue is admissible into evidence even though it points to a separate crime unless its admissibility is precluded by a specific rule of exclusion. We further held that evidence of collateral offenses is inadmissible if its sole relevancy is to establish bad character or propensity of the accused. We emphasized that the question of relevancy of this type of evidence should be cautiously scrutinized before it is determined to be admissible, but that nonetheless relevancy is the test. Evidence of other crimes is relevant if it casts light on the character of the crime for which the accused is being prosecuted. For example, this evidence is relevant when it shows either motive, intent, absence of mistake, common scheme or plan, identity, or a system or general pattern of criminality. Subsequently, in Williams v. State, 117 So.2d 473 (Fla.1960), we reaffirmed the rule of admissibility enunciated in our first Williams case but reversed a defendant’s conviction because the State had made a collateral offense a feature instead of an incident of the trial. We held that the State had gone too far in the introduction of testimony about a later crime committed by the accused so that the inquiry transcended the bounds of relevancy to the charge being tried, and we stated:

This may not be done for the very good reason that in a criminal prosecution such procedure devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject.

117 So.2d at 475-76. Thereafter, in Wilson v. State, 330 So.2d 457 (Fla.1976), we held that the introduction of six hundred pages of trial transcript pointing to separate crimes committed by the defendant was not reversible error because this evidence was relevant to establish a pattern of conduct similar to the conduct for which defendant was being prosecuted.

In Ashley v. State, 265 So.2d 685 (Fla.1972), defendant sought reversal of a murder conviction because the trial court admitted evidence of four other murders that he had committed shortly after the murder for which he was tried. We held that the evidence objected to was admissible because it was relevant to the issues of motive, intent, identity, and modus operandi of defendant. We reached this conclusion even though this evidence may not have been necessary to the State’s case since Ashley’s confession was in evidence as was the testimony of an eyewitness to the murder. We emphasized: “So long as evidence of other crimes is relevant for any purpose the fact that it is prejudicial does not make it inadmissible. All evidence that points to a defendant’s commission of a crime is prejudicial. The true test is relevancy.” 265 So.2d at 694. See also Antone v. State, 382 So.2d 1205 (Fla.1980); Brown v. State, 381 So.2d 690 (Fla.1980); Alford v. State, 307 So.2d 433 (Fla.1975).

In our recent decision of Smith v. State, 365 So.2d 704 (Fla.1978), relying upon Ashley v. State, we recited that among the other purposes for which a collateral crime may be admitted under Williams is establishment of the entire context out of which the criminal action occurred. We said:

At trial the state’s theory was that,.as Johnson testified, the two murders occurred during one prolonged criminal episode. The three perpetrators met together and planned a robbery. The rest of the night was devoted to the robbery, its concealment, and the allocation of the proceeds. From the time the parties met and conspired to commit robbery, there was an unbroken chain of circumstances relating to and flowing from the robbery. Because of the robbery two related murders occurred within a short time of one another. Of the three men who committed the first murder, one was the victim of the second murder and the other two were his killers. Smith’s car was used throughout the criminal episode and the same ice pick was used in the robbery and both murders. The second murder is clearly a part of the context surrounding the murder for which Smith was tried. Evidence of the murder of Wagner is therefore relevant to illustrate the criminal context in which the first murder occurred.
Additionally, the testimony concerning the second homicide is relevant to place Smith at the scene of the first, since it shows that he was with the people involved in the initial homicide just an hour after it took place. He was also placed by this evidence in a car which was directly linked to the scene of the first murder.

365 So.2d at 707.

The testimony of collateral crimes to which Ruffin objects was properly admitted into evidence because it was relevant to the material issue of identity and because it established the entire context out of which the criminal action occurred. Furthermore, we find that contrary to Ruffin’s assertion, this testimony did not become a feature as opposed to an incident of his trial on the present charges.

In addition to reviewing the record in light of the alleged errors asserted by Ruf-fin which are without merit, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. We, accordingly, affirm the convictions for murder in the first degree and sexual, battery.

We next consider Ruffin’s challenges to his death sentence. After a jury recommendation of death, the trial court imposed the sentence of death. It found that the following aggravating circumstances had been proven beyond a reasonable doubt:

(a) That at the time of the crime for which he is to be sentenced, the Defendant had been previously convicted of another capital offense or of a felony involving the use or threat of violence to some person.
(b) That the crime for which the Defendant is to be sentenced was committed while the Defendant was engaged in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, any robbery, arson, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb.
(c)That the crime for which the Defendant is to be sentenced was especially heinous, atrocious or cruel ....

The court gave the following reasons in justification for finding these three aggravating circumstances:

A. That at the time the crime for which Defendant Ruffin is to be sentenced he had previously been convicted of one felony involving the threat of violence to persons, as is shown and reflected by the copy of the 1978 adjudication of guilt of Defendant Ruffin of First Degree Murder, copy of the adjudication having been introduced into evidence by the State during the sentencing proceeding.
B. That the crime for which Defendant Ruffin is to be sentenced was committed while in the act of committing a robbery, and kidnapping, namely the robbery and kidnapping of Karol Lea Hurst on the 21st day of February, 1978, at approximately 3:00 P.M. as is shown and reflected by the testimony presented during the trial and sentencing proceeding.
C. The crime for which the Defendant Ruffin is to be sentenced is especially heinous and atrocious. A summary of the testimony in regard to Paragraph B. and C above is as follows:
AS TO ROBBERY
1. That Karol Lea Hurst while returning to her parked automobile after buying groceries at the Pantry Pride Grocery Store, located at the J. M. Fields Plaza in Leesburg, Florida, was robbed by the Defendant Ruffin of certain items; her poeketbook, wallet, checkbook, and a 1975 Plymouth Fury belonging to her and her husband, Benjamin Hurst.
AS TO KIDNAPPING
2. At the same time and place Karol Lea Hurst was forcibly and against her will kidnapped and abducted by the Defendant Ruffin from said J. M. Fields Plaza Parking Lot and driven by Hall the co-defendant, in said Plymouth Fury to a heavily wooded area in Sumter County, Florida, where she was pistol whipped on and about her head, neck, shoulders and body and was sexually abused by either or both Defendants, Mack Ruffin, Jr. and his co-defendant Freddie Lee Hall.
AS TO HEINOUS AND ATROCIOUS ACTS
The victim Hurst was, at that time, 21 years of age, 7 months pregnant, and married less than one year. She begged and pleaded with either or both Defendant Ruffin and his co-defendant Hall to spare her life and that of her unborn child. Evidence in the form of her check in the sum of $20,000.00 was found at the crime scene to support her unheeded plea. She was shot in the back of the head while lying face down with a .38 caliber pistol. The said .38 caliber pistol was found four hours later under the dead body of Deputy Lonnie C. Coburn, shot to death in Hernando County, Florida.

Ruffin argues that the trial court erred in finding as an aggravating circumstance that the murder occurred during the course of a kidnapping and robbery, first, because he was not on notice that these offenses would be considered and, second, because he was not tried for these particular offenses by the jury. Ruffin’s first contention is without merit. A defendant has no right to a statement of particulars as to the aggravating circumstances upon which the State will rely to support its request for the death penalty. Clark v. State, 379 So.2d 97 (Fla.1979). His second contention is also without merit. It was not necessary that Ruffin be charged and convicted of the robbery and the kidnapping that led to the murder of Mrs. Hurst. The State proved beyond a reasonable doubt that concomitant with the murder Ruffin also committed the robbery and the kidnapping. The State has clearly met its burden, and the court properly found and applied this aggravating circumstance.

We likewise reject Ruffin’s assertion that the trial court erroneously considered his conviction for murder of Deputy Coburn as the aggravating circumstance, “previously convicted of another capital offense,” since this conviction was on appeal to the District Court of Appeal, Second District, at the time of sentencing. We recently held that this aggravating circumstance encompasses convictions in existence at the time of sentence for crimes committed after the murder for which a defendant is being sentenced. King v. State, 390 So.2d 315 (Fla.1980). Ruffin submits, however, that if the prior conviction of a felony involving the use or threat of violence is to be used as an aggravating circumstance, it must be final and that in the present case it was not final at the time of sentencing in view of his pending appeal of that conviction. Citing Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947), he suggests that we analogize this situation to the enhancement of sentences under the habitual offender act. Section 775.084, Florida Statutes (1977). We reject this analogy. Ruffin, at the time of sentencing, had been adjudged guilty of Co-burn’s murder, and the fact that this conviction was on appeal did not affect its consideration for the purpose of determining Ruffin’s character and propensity to commit violent crimes. In Joyner v. State, we held that before a prior conviction may be used to enhance punishment under the habitual offender statute, the prior conviction must be final and, if an appeal is taken from a judgment of guilty, the conviction is not final until the judgment of the lower court is affirmed on appeal. But we explained that the purpose of the habitual offender statute “is to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed.” 30 So.2d at 306.

On the other hand, the purpose of considering previous violent convictions in capital cases differs from the purpose of the habitual offender statute. In Elledge v. State, 346 So.2d 998, 1001 (Fla.1977), we said “the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge.”

Certainly, the fact that a defendant has been found guilty by a jury and adjudicated guilty by the trial court of such violent crimes is material to this character analysis. A defendant previously convicted of a violent felony against the person of another should not be able to escape this character analysis by an argument that his conviction, which is presumed to be correct, is on appeal. Ruffin’s previous conviction for the murder of Deputy Coburn was properly considered by the trial court because it was relevant to a determination of Ruffin’s propensity to commit violent crimes. Peek v. State, 395 So.2d 492, (Fla.1980).

Ruffin further contends that- the trial court reversibly erred in failing to consider and to weigh the mitigating circumstance of no significant history of prior criminal activity. The State, during closing argument in the sentencing phase of the trial, urged the jury and judge to consider Ruf-fin’s murder of Deputy Coburn as significant prior criminal activity. Ruffin now contends that it was improper to consider this criminal conduct because it occurred during the same criminal episode and after the murder for which he was being tried. The State responds that this criminal activity was properly considered to negate the mitigating circumstance of no significant history of prior criminal activity.

We hold that in determining the existence or absence of the mitigating circumstance of no significant prior criminal activity, “prior” means prior to the sentencing of the defendant and does not mean prior to the commission of the murder for which he is being sentenced. The interpretation of “prior” advanced by Ruffin is unreasonable particularly in view of the fact that a defendant may have committed a murder for which he is not apprehended until many years later and during the course of these years he may have a long history of significant criminal -activity. Ruffin’s position would prevent the court from negating this mitigating circiimstance by considering the defendant’s criminal activity occurring after the commission of the murder. This interpretation would thwart the legislature’s intent when it established this mitigating circumstance.

We also find no merit in Ruffin’s assertion that the court erred in not considering and weighing as a mitigating factor that his participation in the murder was minor and that he was under the domination of Hall. Apparently, neither the jury which recommended the death penalty nor the trial court believed that Ruffin’s participation was minor or that he was under Hall’s domination. His contention is premised solely on a self-serving portion of his confession, and the record does not evidence this alleged domination or only minor participation in the criminal activities culminating in the death of Mrs. Hurst.

Furthermore, the trial court did not err in not finding Ruffin’s dull normal intelligence to be a mitigating factor. Although recognizing that his intelligence level does not fit into the statutory mitigating circumstances relating to mental conditions, Ruffin urges that the court should have considered it to be a non-statutory mitigating circumstance. The mere fact that evidence that Ruffin was of dull normal intelligence was presented does not mean, as Ruffin seems to suggest, that the trial court was compelled to find this to be a mitigating factor.

We also reject Ruffin’s contentions that his sentence of death amounts to cruel and unusual punishment and that the trial court erroneously limited the jury to consideration of statutorily enumeratéd mitigating circumstances contrary to the requisites of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Review of the record of the instructions in the sentencing phase of the trial reveals that the court limited the jury only to its consideration of statutorily enumerated aggravating circumstances but did not limit the jury to consideration of only statutorily delineated mitigating circumstances.

Accordingly, finding no reversible error, we affirm the judgments and sentences.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, C. J., concurs as to conviction, and dissents as to sentence with an opinion, with which ENGLAND and MCDONALD, JJ., concur.

SUNDBERG, Chief Judge,

dissenting.

Although I concur with the affirmance of the conviction, I have grave problems with the death sentence affirmed by the majority-

First, the majority holds that “in determining the existence or absence of the mitigating circumstances of no significant prior criminal activity, ‘prior’ means prior to the sentencing of the defendant and does not mean prior to the commission of the murder for which he is being sentenced.” I am troubled by the use of a contemporaneous crime in the same criminal episode to negate the mitigating circumstance of no history of prior criminal activity. The unfairness of such a holding is painfully obvious in the present case where the conviction for the murder of the deputy, which actually occurred shortly after the kidnapping, robbery and death of the woman, is utilized to create a “history” of prior criminal activity when the defendant had no other criminal history. Such a holding goes against any common-sense interpretation of the phrase “history of prior criminal activity” and amounts to tortured logic in my estimation. The trial judges of our state have not interpreted this section in such a manner.

I can understand the majority’s point with respect to a criminal history intervening between a stale homicide and prosecution for that homicide. However, that is not the case before us.

I recognize that Elledge v. State, 346 So.2d 998 (Fla.1977), and Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), permit subsequent or contemporaneous criminal acts for which there is a conviction prior to the sentence for a homicide to be used in aggravation. This does not mean, however, that we should allow a contemporaneous crime to be used to negate the mitigating circumstance of no history of prior criminal activity as was done in this case. The statutory language for the aggravating circumstance speaks only in terms of “previous convictions.” The language related to the mitigating circumstance speaks in terms of no significant “history of prior criminal activity.” The term “history” must relate to a time frame broader than crimes committed contemporaneously with the crime for which the death sentence is being imposed. To hold otherwise would result in a finding of a “history” of prior, criminal activity for every person who commits another crime during the same criminal episode in which a murder is committed.

A second problem which concerns me is the fact that the jury was permitted to consider robbery and kidnapping in aggravation, even though the defendant was neither charged with nor convicted of those crimes. Although the trial judge is experienced enough to know the elements which make up the crime of robbery and kidnapping, I do not believe we can attribute that same expertise to a jury. The prosecution urged this aggravating circumstance on the jury as well as the court and it occurs to me that the jury may very well have found that the homicide occurred during the commission of a robbery and a kidnapping without ever having been instructed as to the elements of those crimes.

Since I conclude there was error in permitting the jury to consider an aggravating factor upon which they had not been properly instructed coupled with the existence of one found mitigating circumstance— age — as well as another that was supported by the evidence (no significant history of prior criminal activity), resentencing is called for. Elledge v. State. Furthermore, since the taint in the process may have affected the jury’s recommendation I would remand for a full sentencing hearing before jury and judge.

ENGLAND and McDONALD, JJ., concur.

      . Majority opinion at page 283.

      . Trial courts have traditionally interpreted “history of prior criminal activity” as crimes committed previously to the one for which the defendant is being sentenced. See, e.g., Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); Salvatore v. State, 366 So.2d 745 (Fla.1978).

      . Section 921.141(5)(b), Florida Statutes (1979), states: “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.”

      . Section 921.141(6)(a), Florida Statutes (1979), states: “The defendant has no significant history of prior criminal activity.”

      . Although originally indicted for these crimes they were nolle prossed before trial.

      . Section 921.141(5)(d), Florida Statutes (1979), states: “The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.”


author: PER CURIAM.

text:
    David Leroy WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 60403.
    Supreme Court of Florida.
    April 6, 1981.

      Richard E. Shapiro, New Orleans, La., and David Lipman, Miami, for appellant.
    Jim Smith, Atty. Gen., Calvin L. Fox, Asst. Atty. Gen., Miami, Janet Reno, State Atty., and Ira Loewy, Asst. State Atty., Miami, for appellee.
   PER CURIAM.

David Leroy Washington appeals from a trial court order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant requested but was denied an evidentiary hearing on his motion, and his request to stay execution pending a final disposition was also denied. Having reviewed the record, we are unable to find merit in any of appellant’s arguments which assail his sentence, and therefore affirm the trial court’s denial of relief under rule 3.850.

Washington was convicted of first-degree murder and received on December 15, 1976, three separate death sentences from the trial judge after he entered pleas of guilty and expressly waived a sentencing jury. The judgments of conviction and sentences were affirmed by this Court on September 7,1978. Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979). On September 19, 1980, appellant filed an initial unsworn 3.850 motion with the trial court which was denied on October 2, 1980, nunc pro tunc September 23,1980, without prejudice to refile with verification. Following clemency proceedings, the Governor of Florida signed Washington’s death warrant on March 13, 1981. The appellant, almost six months after his original filing, refiled his motion for post-conviction relief, essentially unchanged but for the addition of a verification by Washington dated September 29, 1980. After a hearing, the trial court denied all relief by order of March 27, 1981. It is from this order that the present appeal arises.

Appellant raises a broadside of challenges to his sentence, of which the most critical is his claim of ineffective assistance of trial counsel because his attorney (1) failed to seek a continuance after the guilty plea to prepare a case for sentencing; (2) failed to obtain or request a psychiatric report; (3) failed to investigate and present character witnesses; (4) failed to request a presentence investigation report; (5) failed to present meaningful arguments to the sentencing judge; and (6) failed to investigate medical examiner’s reports or to cross-examine those persons. Appellant contends that he has made a sufficient showing under rule 3.850 to deserve an evidentiary hearing and that the trial court erred in applying the principles of Knight v. State, 394 So.2d 997 (Fla.1981), to deny his application absent an evidentiary hearing. We disagree. The standards of Knight do apply when assessing the sufficiency of a 3.850 motion predicated upon ineffective counsel, when determining whether the claim warrants an evidentiary hearing. Although we recognize that under both the terms of rule 3.850 and Meeks v. State, 382 So.2d 673 (Fla.1980), the evidentiary hearing can only be denied if it is conclusively shown that appellant’s motion lacks merit, we conclude that when the first three criteria of Knight for establishing ineffective counsel are placed alongside of appellant’s claims, those claims are shown conclusively to be without merit so as to obviate the need for an evidentiary hearing.

To each of appellant’s initial six points, the state counters with arguments that the omissions were not substantial. But even more fatal, we can find no prejudice caused to appellant, even if we assume that every allegation he has made in his petition is true. Several contentions focus on the lack of proof of appellant’s good character and his emotional and economic stress just prior to the murders. But equivalent proof was indeed placed before the sentencing court by Washington himself in the guilty plea colloquy, in which he attested to his troubles and that this was his first encounter with the law, all without being subjected to cross-examination. Nor was trial counsel’s failure to obtain or request a psychiatric evaluation prejudicial since all psychiatric evaluations conducted before and after sentencing failed to raise any evidence of significant mental disturbance or impairment. None of these reports raise any substantial legal or factual arguments in mitigation, and hence there could be no prejudice. Failure to request a pre-sen-tence investigation report does not establish prejudice since the results of such an investigation would be pure speculation. In any event, such a report is discretionary with the trial court. Hargrave v. State, 366 So.2d 1, 4 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

The record shows that trial counsel made a respectable argument on appellant’s behalf at the sentencing hearing. A confession plus numerous aggravating factors limit the alternatives of the most zealous of advocates. Finally, counsel’s failure to investigate medical reports and cross-examine the medical examiners could not be prejudicial since the facts of the reports were admitted by defendant in his confession. Under the circumstances cross-examination could have accomplished little. Indeed, cross-examination is a trial tactic choice properly within counsel’s discretion. See Ross v. State, 392 So.2d 23 (Fla. 4th DCA 1980) (concurring opinion); Robinson v. State, 378 So.2d 1346 (Fla.3d DCA 1980).

In conclusion, on the claims of ineffective counsel, the appellant has failed under the Knight criteria to make a prima facie showing of substantial deficiency or possible prejudice and has failed to such degree that we believe, to the point of a moral certainty, that he is entitled to no relief under rule 3.850.

Appellant also sought to include an assertion of ineffective assistance of appellate counsel as a basis for 3.850 relief. Because this claim did not relate to the judgment and sentence of the trial court, the court below properly declined to entertain the issue. For purposes of this appeal we shall treat the claim as a petition for writ of habeas corpus. Having now carefully considered the alleged ineffectiveness of appellate representation, we find no serious deficiencies causing prejudice to appellant, and we therefore deny habeas relief. See Knight v. State, 394 So.2d 997 (Fla.1981).

Appellant presents fourteen asserted trial court errors or constitutional defects, ranging from the court’s failure to request a pre-sentence investigation to a multitude of oft-repeated constitutional challenges to Florida’s death penalty statute. Many of the issues have been conclusively decided adversely to appellant’s position. The balance are either without merit or have been waived. Hargrave v. State, 396 So.2d 1127 (Fla.1981); Witt v. State, 387 So. 2d 922 (Fla.), cert. denied, - U.S. -, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Meeks v. State, 382 So.2d 673 (Fla.1980); Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979).

Accordingly, the trial court’s denial of appellant’s motion for post-conviction relief is affirmed, and the motion for stay of execution is denied.

No petition for rehearing will be entertained.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

       Indeed, counsel was successful in preventing the introduction of appellant’s “rap sheet” at the sentencing hearing.


author: McDonald, justice.

text:
    Steven Craig HOFFMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 57554.
    Supreme Court of Florida.
    April 9, 1981.
    H. Bryant Sims of Winkel, Sims, Kenney & Crosswell, Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   McDonald, justice.

Pursuant to article V, section 3(b)(3), Florida Constitution (1972), we review Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979), and approve that decision.

An information charged that Hoffman committed armed robbery and false imprisonment on June 1, 1977. Responding to Hoffman’s motion, the state filed a statement of particulars alleging that the offenses occurred between 11:00 a. m., June 1, 1977 and 11:00 a. m., June 2, 1977. After the opening statements, defense counsel pointed out that, during opening argument, the state had commented that the crimes occurred during the late evening of May 31, 1977 or early morning of June 1, 1977. The state then requested permission to amend the statement of particulars. Defense counsel asked that the state be restricted to the date in the original statement of particulars.

The court questioned both attorneys regarding the propriety and effect of allowing the amendment. When asked if he knew before trial that the proof would relate to a time prior to that set out in the statement of particulars, defense counsel replied in the affirmative. He went on to say that he did not “have to tell the state [the]'defects in their case, until a jury is sworn.” The court stated that its initial reaction had been to hold the state to its statement of particulars, but, after the inquiry, would allow the state to amend the date subject to showing, prior to submitting the case to the jury, that allowing the amendment was the correct thing to do.

Defense counsel later moved for judgment of acquittal. Relying on rule 3.140(o j, the court denied the motion, ruling that Hoffman had not shown that he had been embarrassed in his defense or otherwise prejudiced. The case then proceeded, and the jury convicted Hoffman of unarmed robbery.

On appeal, the district court found that Hoffman had not demonstrated that amending the statement of particulars prejudiced him. The court reasoned that allowing a criminal defendant,

with full knowledge of the crime alleged against him and with knowledge of a technical error of one day’s date on a pleading, to wait in ambush for the state until the jury is sworn then spring his trap is tantamount to asking the court to referee a game of hide and seek.

372 So.2d at 534. Following the principle set out in Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972), the district court affirmed both Hoffman’s conviction and sentence.

Hoffman now contends that the district court decision conflicts with the following statement made by this Court:

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; the effect of such a specification of date in a bill of particulars is to narrow the Indictment or Information as to the time within which the act or acts allegedly constituting the offense may be proved.

State v. Beamon, 298 So.2d 376, 378-79 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). Both Howlett and now Hoffman hold that a statement of particulars can be amended if such amendment will not prejudice the defendant. A review of the purpose of statements of particulars and the interplay of such discovery tools with the rules of criminal procedure leads us to conclude that the above-quoted statement from Beamon must be qualified.

This Court has previously stated that [t]he purpose of a bill of particulars is merely to give the defendant notice of the particular acts relied upon by the State to establish the crime charged, that the defendant may be fully advised of the nature and cause of the accusation against him, and that he may have an opportunity to prepare his defense.

Middleton v. State, 74 Fla. 234, 240, 76 So. 785, 787 (1917). Also, “[w]here time is material, it must be proved as alleged.” Thorp v. Smith, 64 Fla. 154, 156, 59 So. 193, 193 (1912). On the other hand,

[tjhere may be some variance between the date alleged in the information as being the date the offense charged was committed and that proven on the trial, which variance is immaterial if the proof shows that the crime was committed before the filing of the information and that prosecution therefor was begun within the two year period, except in those rare cases . . . where the exact time enters into the nature or legal existence of the offense.

Horton v. Mayo, 153 Fla. 611, 613-14, 15 So.2d 327, 328 (1943). Compare Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1124 (Fla.1979), and Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972), with Crowell v. State, 238 So.2d 690 (Fla. 3d DCA 1970).

Hoffman contends that Beamon is an absolute bar to allowing a variance between the date alleged and proved and to amending the date alleged in a statement of particulars. The district court, on the other hand, has found such variance or amendment acceptable so long as it causes no prejudice to the defendant. Hoffman v. State; . Holland v. State; MacCourt v. State, 296 So.2d 89 (Fla. 4th DCA), cert. denied, 307 So.2d 449 (Fla.1974); Howlett v. State. See also Hale v. State, 273 So.2d 145 (Fla. 3d DCA), cert. denied, 277 So.2d 285 (Fla.1973) (particulars amended to show different location); Barber v. State, 243 So.2d 2 (Fla. 2d DCA 1971) (particulars amended to show different address). In response to the district court’s reasoning, Hoffman points out that Florida Rule of Criminal Procedure 3.140(n) does not mention prejudice,. In his opinion, therefore, the district court erred by interjecting the issue of prejudice. In our opinion, however, the district court properly considered the issue of prejudice.

We do not condone sloppy work by the state in preparing cases. We realize, however, that mistakes can happen. This Court has previously held that “the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant.” Richardson v. State, 246 So.2d 771, 774 (Fla.1971). See Leeman v. State, 357 So.2d 703 (Fla.1978); Lackos v. State, 339 So.2d 217 (Fla.1976); Fla.R.Crim.P. 3.140(o). The rules are not intended to furnish a procedural device to escape justice, and we are again persuaded that the modern trend in criminal cases

“is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial.”

339 So.2d at 219 (quoting Grimes, J.).

On appeal, an appellant has the burden of showing prejudice. At trial, however, if the state seeks to amend a statement of particulars, it is incumbent on the state to demonstrate a lack of prejudice to the defendant. In other words, it is essential that the circumstances establishing no prejudice affirmatively appear in the record. When such amendment is requested, the trial court should inquire into the surrounding circumstances to determine whether the amendment would result in harm or prejudice to the defendant.

In the instant case, the trial court scrupulously inquired into the circumstances surrounding the requested amendment. This inquiry showed that the defense had prior knowledge that the date had been misstated. The record clearly establishes, that the defense was neither misled by the incorrect date nor prejudiced by the amendment.

The district court opinion is approved. To the extent that Beamon can be interpreted to prohibit any amendment to a statement of particulars, that case is qualified to allow such amendment if a defendant will not be prejudiced thereby.

It is so ordered.

BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.

SUNDBERG, C. J., and ADKINS, J., dissent.

      . Fla.R.Crim.P., which provides, inter alia, that no information will be dismissed “unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense.”

      . (n) Statement of Particulars. The court, upon motion, shall order the prosecuting attorney to furnish a statement of particulars, when the indictment or information upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Such statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts' concerning the construction of this rule shall be resolved in favor of the defendant.


author: OVERTON, Justice.

text:
    Percy v. OGLESBY, Petitioner, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Respondent.
    No. 57700.
    Supreme Court of Florida.
    April 9, 1981.
    John L. Myrick, of Myrick & McKenzie, Pensacola, for petitioner.
    Roger M. Sherman, of Beggs & Lane, Pensacola, for respondent.
   OVERTON, Justice.

This is a petition for certiorari to review an order of the Industrial Relations Commission affirming a dismissal by a judge of industrial claims of a petition for modification. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

The petitioner suffered an industrial accident in 1973, which resulted in a laminecto-my and the removal of a disc. In 1977 petitioner received a permanent partial disability award based in part upon the opinion of his physician that he had a fifteen percent bodily impairment. The testimony of the physician reflected that the petitioner had reached a plateau and that the physician did not anticipate any deterioration or improvement.

Petitioner subsequently sought modification of the initial award on the basis of his deteriorating physical condition and lack of success in obtaining any employment. He stayed under the constant care of the original treating physician, and his treatment included various types of drugs and physical therapy. His physician testified that petitioner’s condition had in his opinion deteriorated and that the deterioration he had observed was related to the increased pain as expressed to him by the petitioner. He increased his rating to a twenty percent impairment, compared to an original fifteen percent impairment. There was no other demonstrable, objective findings of a change in condition. The judge dismissed the petition, finding:

I find the increased rating was based on increase in the intensity of pain. An increase in the intensity of pain alone, is insufficient to support a Petition for Modification on the ground of a change in condition. See Advance Manufacturing Co. v. Griffin[,] I.R.C. Order 2-8638 (12-21-78).

Petitioner argues that the judge failed to properly apply the holding of Griffin and the underlying case of Cheathem v. The Fruit Bowl, Inc., 184 So.2d 171 (Fla.1966), asserting that the judge extended the evi-dentiary standard expressed therein to a rigid requirement of objective manifestations without proper consideration of the treating physician’s observations and evaluation. We agree.

In our view, Griffin and Cheathem stand for the principle that the testimony of a claimant, standing alone, as to increased intensity of pain, is insufficient to establish a change of condition. This principle flows from the following language in Cheathem :

The gist of the claimant’s position in the present appeal, to quote from claimant’s brief, is “that the pain she suffered from was of the same nature and in the same area [as before] but worse in intensity.” Her testimony in support of the contention that a change of condition had occurred is weak indeed. And there appears no other testimony to supply its deficiencies.

184 So.2d at 172. In our opinion, this does not mean that increased pain may not produce an externally observable manifestation which, when it is established by competent medical evidence, is “other testimony.” Although the requested modification was based upon an increase in the intensity of pain, we find it incorrect to conclude that the claim was based solely upon claimant’s testimony in light of the depositions of his physician as to increased dfug prescriptions, physical therapy, and the actual observation of the claimant’s condition over an extended period.

We find that there was sufficient evidence in the instant case of an actual deterioration of the claimant’s physical condition. Further, there was competent medical testimony to establish that this deterioration was caused by the increased pain produced from the original injury. The record also reflects that this deterioration was not originally anticipated by the treating physician or in the initial disability award.

In our view the opinion of the treating physician in this case was not based wholly upon the subjective symptoms of pain related to him by the claimant, and we hold that the medical testimony in this record is sufficient to require the trier of fact to make a determination concerning the asserted change in condition upon the merits and not dismiss the claim on the basis of Griffin or Cheathem.-

The order of the Industrial Relations Commission is reversed, and this cause is remanded to the deputy commissioner for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, BOYD, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C. J., and ENGLAND, J., concur in result only.


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Gary L. DILWORTH, Respondent.
    No. 58461.
    Supreme Court of Florida.
    April 9, 1981.

      Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner.
    Steven H. Parton, Asst. Public Defender, Tallahassee, for respondent.
   McDONALD, Justice.

This case is before us on a petition for writ of certiorari to review a decision of a district court, reported at 381 So.2d 1125 (Fla. 1st DCA 1979). Because that court’s decision conflicts with Leeman v. State, 357 So.2d 703 (Fla.1978), and Johnson v. State, 351 So.2d 10 (Fla.1977), we have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972). We disapprove the district court decision.

Dilworth was charged by information with fifteen counts of unemployment compensation fraud. Except for the dates, the language of each count is virtually identical. Count I reads:

[The defendant] on the 17th day of April, 1976, in the County of Gadsden and State of Florida, did then and there knowingly make a false statement or representation, or knowingly fail to disclose a material fact, to obtain or increase unemployment benefits for himself from the Bureau of Unemployment Compensation, to which he was not lawfully entitled at such time, contrary to Section 443.22(1), Florida Statutes.

Dilworth moved to dismiss the information for vagueness because, while it tracked the statutory language, it failed to recite any of the specific misrepresentations which caused the fraud. The trial court denied the motion, and Dilworth pled nolo contendere reserving his right to appeal the trial court ruling. Accepting Dilworth’s vagueness argument, the district court reversed.

An information must be quashed for vagueness on a motion to dismiss only if it is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Fla.R.Crim.P. 3.140(o); State v. Black, 385 So.2d 1372 (Fla.1980); Martinez v. State, 368 So.2d 338 (Fla.1978); State v. Smith, 240 So.2d 807 (Fla.1970).

While in some cases an offense may be adequately charged by reciting the statute, a mere recitation is not sufficient if the statutory language is so generic that it fails to inform the defendant specifically what allegedly criminal acts he committed. Thus, in State ex rel. Swanboro v. Mayo, 155 Fla. 330, 19 So.2d 883 (1944) (en banc), we required the prosecutor to allege what acts of the accused were lewd and lascivious in an information which, using the statutory language, charged only that the defendant “did . . . knowingly commit a lewd and lascivious act.” The concern in that the case was that the characterization of acts as lewd and lascivious might reasonably differ between persons or with the passage of time. In other words, the term lewd and lascivious is not specific enough to inform the defendant of the criminal acts he allegedly committed.

We recently struck down for vagueness an information which tracked the statutory language. State v. Covington, 392 So.2d 1321 (Fla.1981). In that case the information charged that the defendant

did directly or indirectly engage in transactions, practice or course of business with regard to the sale of the bonds of Lake Padgett Estates East Road and Bridge District, Extension No. 3, Pasco County, Florida, which operated as a fraud or deceit upon the said bondholders in connection with their purchase of the said bonds . .. contrary to Chapter 517.-301(l)(c). .. .

A mere allegation that an accused engaged in fraudulent transactions, practices, or course of business is not specific enough to inform a defendant of what he allegedly did wrong.

Citing State v. Cadieu, 353 So.2d 150 (Fla. 1st DCA 1977), the district court held that the Dilworth information is couched in generic terms which do not adequately inform the defendant of the actions with which he is charged. The language of Ca-dieu, a lewd and lascivious assault case, relies on the rationale of Swanboro that one must specifically allege the acts which constitute a lewd and lascivious act. The Swanboro concerns, however, do not apply to the instant case involving the making of false representations to obtain unemployment benefits. Unlike lewd and lascivious act, the terms false statement, false representation, and failure to disclose a material fact are not so vague that a defendant is not informed of what he did wrong. If the defendant wants to know more detail as to what occurred he may, of course, seek a statement of particulars.

Our holding is consistent with our recent decision in Leeman in which we sustained the following information:

[The defendant] did unlawfully, feloni-ously, and knowingly make or possess, for purposes of avoiding or attempting to avoid payment for long distance telecommunication services, an electronic device capable of duplicating tones of sound utilized in long distance telecommunications, to wit: A BLUE BOX, in violation of 817.482, Florida Statutes.

357 So.2d at 704. The statute upon which that information was based read:

Any person who shall make or possess, for purposes of avoiding or attempting to avoid payment for long distance telecommunication services, any electronic device capable of duplicating tones or sounds utilized in long distance telecommunications shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 817.482(2), Fla.Stat. (1975). Accord, Johnson.

With the advent of Florida’s liberal discovery rules in criminal cases, along with the availability of a statement of particulars, a defendant is no longer forced to obtain information about the charge only from the charging document. While these discovery tools generally cannot cure a fatally vague charging document, they do reduce the danger of a defendant’s being in doubt as to the specifics of his alleged wrongdoing or of his being subjected to a new charge arising from the same act. In other words, an information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy. The present information satisfies this requirement.

The decision of the district court is quashed, and this case is remanded for further proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON and ALDERMAN, JJ., concur.

      . The pertinent statute is section 443.22(1), Florida Statutes (1975), which reads:
      Whoever makes a false statement or representation, knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any benefits or other payment under this chapter or under an employment security law of any other state, of the Federal Government, or of a foreign government, either for himself or for any other person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.

      . See, e. g., Leeman v. State, 357 So.2d 703 (Fla.1978); Johnson v. State, 351 So.2d 10 (Fla.1977).

      . See State v. Black, 385 So.2d 1372 (Fla.1980) (indictment); Kelly v. State, 92 So.2d 172 (Fla.1956) (en banc) (information).

      . See Art. I, §§ 9, 16, Fla.Const.; Fla.R.Crim.P. 3.140.


text:
    THE FLORIDA BAR, Petitioner, v. John R. SNOW, Respondent.
    No. 58875.
    Supreme Court of Florida.
    April 9, 1981.
    E. G. Couse, Chairman, Twentieth Judicial Circuit Grievance Committee, Fort Myers, James P. Hollaway, Deputy Staff Counsel, Tallahassee, Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale, and Dennis L. Avery of Bigelow & Winesett, Fort Myers, for petitioner.
    John R. Snow of Patterson, Turk, Hudson & Barclay, Cape Coral, and Larry Byrd of Ginsburg, Byrd & Jones, Sarasota, for respondent.
   PER CURIAM.

The Florida Bar has petitioned this Court to impose a ninety-day suspension on respondent instead of the referee’s recommended public reprimand and payment of costs. The referee based his recommendations on the respondent’s comparative inexperience, prior unblemished record, and the referee’s feeling that the respondent did not fully comprehend the gravity of his conduct.

Althoug'h age and inexperience will not excuse unprofessional conduct, the Bar relies on cases which are factually distinguishable from the instant situation. On the other hand, respondent’s contention that the complaint should be dismissed is equally unpersuasive. A review of the evidence convinces us that the referee’s findings and recommendations are proper.

Those recommendations are hereby approved, and publication of this opinion shall constitute a public reprimand. Respondent is directed to pay costs amounting to $2,329.68.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.

      . The Florida Bar v. Prior, 330 So.2d 697 (Fla.1976); State ex rel. The Florida Bar v. Rhubot-tom, 132 So.2d 395 (Fla.1961); Dodd v. The Florida Bar, 118 So.2d 17 (Fla.1960).


text:
    THE FLORIDA BAR, Petitioner, v. Margaret BOYD, etc., Respondent.
    No. 59994.
    Supreme Court of Florida.
    April 9, 1981.
    Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, and H. Glenn Boggs, Asst. Staff Counsel, Tallahassee, for petitioner.
   INJUNCTION AGAINST UNAUTHORIZED PRACTICE OF LAW

PER CURIAM.

This cause is before the Court upon a petition of The Florida Bar to enjoin respondent from the unauthorized practice of law. Facts were alleged which, if proven, would constitute the practice of law by an unlicensed person.

A rule to show cause was issued by this Court and duly served by a deputy sheriff of Hillsborough County. A referee was appointed and a notice to appear and show cause was issued but the record and report of the referee show it was not served because respondent had sold her home and moved to California.

As recommended by the referee the respondent is hereby enjoined from the unauthorized practice of law in the State of Florida.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.