Statement of Particulars
Every person charged with a crime should be able to understand the charge pending against them. Problems with the charging document, sometimes called the “information,” include the following:
- failing to charge a crime properly;
- failing to allege each essential element of the crime; or
- failing to provide adequate notice of the crime charged or possible penalties.
To deal with these problems, Florida’s Rules of Criminal Procedure provided two pre-trial remedies:
- a motion for statement of particulars under Rule 3.140(n); or
- a motion to dismiss under Rule 3.190(c).
The rule for the “Statement of Particulars” found in Fla. R. Crim. P. 3.140(n) provides:
The court, on motion, shall order the prosecuting attorney to furnish a statement of particulars when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense.
The 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.
Rule 3.140(o) guides the trial court’s determination of whether the dismissal of the case before trial was appropriate:
No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, 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 or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.
If the trial court denies relief, then on appeal, the defendant must establish that the information wholly failed to charge a crime or was impermissibly vague, indistinct, and indefinite.
The defendant should also establish prejudice from the language of the charging document. The caption and body of the information contained:
…all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and … pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense.
Battle v. State, 365 So.2d 1035, 1037 (Fla. 3d DCA 1978).
If the trial court does not grant the proper relief, then on appeal, the appellate court will reverse the defendant’s conviction and remand the case for a new trial.
Examples of “Statement of Particulars” Cases
In Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007), a defendant was charged with one count of escape in an information that did not include any factual specifics. Id. at 674.
At trial, the state presented evidence that the defendant escaped from police custody on two separate occasions and argued, without objection by the defense, that the jury could convict the defendant on the escape count based on either of his escapes. Id.
The court held that this was a fundamental error since it compromised the jury’s ability to render a unanimous verdict, reasoning:
“The State’s actions make the unanimity of the jury’s verdict questionable, as some members of the jury could have determined that one incident constituted escape, while others on the jury could have determined that the other incident constituted escape, rather than agreeing unanimously that the same incident constituted escape.”
Id. at 674–75.
In Chaffin v. State, 121 So. 3d 608, 615–16 (Fla. Dist. Ct. App. 2013), the State argued to the jury that it could convict the defendant for one charge of tampering based on one of two separate instances of tampering. This is evidenced by the State’s response when the court asked what the tampering with evidence charge went to concealing the grow house or burying the body. Id. at 615.
Narrowing the Timeframe
In Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993), the court found:
“a trial court on a proper motion is required to dismiss an information or indictment involving lengthy periods of time if the State in a hearing cannot show clearly and convincingly that it has exhausted all reasonable means of narrowing the time frames further.
Where such showing is made, the burden then shifts to the defendant to show that the defense more likely than not will be prejudiced by the lengthy time frame.”
The decision in Dell’Orfano v. State did not create a bright line rule for when an alleged time frame for an offense is too broad,
Dell’Orfano was remanded for further proceedings. The trial court again granted a motion to dismiss because the time period alleged for the offenses, which had been narrowed from 35 months to 27 months, was still too broad, and the information as written could lead a jury to non-unanimous verdicts.
The Fourth District concluded: “It is well settled that separate and distinct offenses may not generally be alleged in a single count of an indictment or information. To be legally sufficient, an information can neither be so vague or indefinite as to mislead or embarrass the accused, or subject him or her to multiple prosecutions.” Id. at 1214 (internal citations omitted).
“In the instant case, the information lists four counts. Each count includes only one specific criminal act, but charges that such act occurred on one or more occasions over a two and one-half year time period. It may be true, as the state contends, that the individual count removes the potential hazard of non-unanimous verdicts. To find appellee guilty on an individual count, the jurors would have to all agree that appellee performed the specific criminal act alleged in that count at least one time.” Id. at 1215.
The court held, “Where it is reasonable and possible to distinguish between specific incidents or occurrences, as it is in this case, then each should be contained in a separate count of the accusatory document. While we agree with the reasoning of the trial court on this issue, we reverse and remand to give the state an opportunity to amend.” Id. at 1216.
It is important to distinguish the time frames alleged in an information and any clarification of time frames by a statement of particulars. “When a bill of particulars narrows the time within which the crime occurred, and the prosecution fails to show the defendant committed the offense within that time frame, a conviction on the charge must be reversed.” Audano v. State, 674 So. 2d 882 (Fla. 2nd DCA 1996).
State Attorney’s Response to the Motion for Statement of Particulars
Ironically, the assistant state attorney assigned to the case will often file a generic response to the motion for statement of particulars. We added the content from that response below.
STATE’S RESPONSE TO DEFENDANT’S MOTION FOR STATEMENT OF PARTICULARS
Comes now, BRUCE BARTLETT, State Attorney for the Sixth Judicial Circuit, Florida, by and through the undersigned Assistant State Attorney, and files its Response to Defendant’ Motion for Statement of Particulars pursuant to Fl. R. Crim. Pro. 3.140(n) and states the following:
The purpose of a motion for Statement of Particulars is to specify the time and place of the offense if such facts are known. See Holt v. DOC, 2023 WL 2044771 (M.D. Fla. 2023) (quoting Williams v. State, 344 So. 2d 927 (Fla. 3d DCA 1977)). A request for a statement of particulars is not to provide the defense with the State’s entire theory of presenting the case, but rather, in appropriate circumstances, provide the defense with information not already present in the discovery provided. A motion for a statement of particulars is properly denied where the details requested by the defendant relate to matters that are within his knowledge, are evidence from an examination of the information, or may be obtained through other means readily accessible to the defendant. See Saldana v. State, 980 So. 2d 1220 (Fla. 2d DCA 2008), (quoting Peel v. State, 154 So. 2d 910 (Fla. 2d DCA 1963)). The discovery provided in this case includes the witness list, reports, … and the charging document. The items provided in discovery and in the information address the paragraphs 1-6 and 8 of defendant’s motion.
Furthermore, a motion for a statement of particulars which essentially requests that the State prove the entire case prior to trial is properly denied. Brown v. State, 473 So. 2d 1260 (Fla. 1985). We have charged …. Defenses motion should be denied because the charging document sufficiently informs the defense of the dates of the offenses and the discovery sufficiently provides the time and place of the offenses, the charging document and discovery provided informs the defense of the specific crimes charged. This satisfies the requirement of information that needs to be provided to the defendant in order to properly prepare his defense, and thus the defendant’s motion should be denied. See Sutherland v. State, 305 So. 3d 776 (Fla. 1st DCA 2020) (citing Smith v. State, 112 So. 70 (Fla. 1927)). There is no more information the State can provide that has not already been provided in the information and in discovery that would aid the defendant in his preparation of his defense.
The purpose of a statement of particulars is to fully advise the defendant of the nature and cause of the accusation against him if such nature and accusation wasn’t previously provided, and to afford him the opportunity to prepare his defense. See Smith v. State, 333 So. 3d 255 (Fla. 1st DCA 2022) (quoting Brown v. State, 462 So. 2d 840 (Fla. 1st DCA 1985)). The State would respectfully argue that the nature and cause of the accusation against the Defendant are clear in the information and discovery provided, and as such, it is proper to deny the Defense’s motion for a statement of particulars.
Based on the foregoing, the State respectfully moves this Court to deny the motion.
Consequences of the Statement of Particulars Being Granted
In some cases, the court will grant the defense motion for a statement of particulars by requiring the State to “specify as definitely as possible the place, date, and all other material facts of the crime charged.” Fla. R. Crim. P. 3.140(n).
When a statement of particulars is filed, the State cannot, over defense objection, seek a conviction based on facts other than those contained in the statement. See Brown v. State, 462 So. 2d 840, 843 (Fla. 1st DCA 1985).
Additionally, the courts have concluded:
When the prosecuting officer has, in the statement of particulars, specified as definitely as possible and as is known to him [or her] what the material facts are . . . and, in the opinion of the trial judge, such facts do not legally constitute the crime charged or they affirmatively establish an effective bar to the prosecution, then the motion to dismiss should be granted.
State v. Davis, 243 So. 2d 587, 591 (Fla. 1971).
This article was last updated on Tuesday, June 20, 2023.
