Statement of Particulars
If the information fails to properly charge a crime, fails to allege each essential element of the crime, or otherwise fails to provide adequate notice of the crime charged or possible penalties, the Rules of Criminal Procedure provided a defendant with 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” 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.
Fla. R. Crim. P. 3.140(n).
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 relief is denied by the trial court, 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 Cases involving a “Statement of Particulars”
In Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007), a defendant was charged with one count of escape via 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. We held that this was 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.
In Perley, the “State’s actions made the unanimity of the jury’s verdict questionable as some members of the jury could have determined” that [the defendant’s] crime was one incident while others determined it was another incident. In Perley, the Court reversed the defendant’s conviction for tampering and remand for a new trial on that charge.
The State responded: “Well, if you look at the Information, there was no motion for
“Well, if you look at the Information, there was no motion for statement of particulars, it said destroy a thing or object, so it could be either one.” The State’s explanation to the jury in closing argument was no different, and it specifically referenced the opening of two separate and distinct investigations, one instigated by the girlfriend calling about the grow house and the other to investigate the killing: Now was there an investigation pending when he buried his dad and destroy (sic) and the marijuana and the grow house and all that stuff? No, not yet. Was it about to be instituted? [His girlfriend] called the cops, right? And when a person murders someone, kills them, whether it’s justifiable or not, guess what’s about to be instituted? An investigation, okay?”
Id. at 616.
Narrowing the Timeframe
In Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993), the court said, “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).
This article was last updated on Monday, July 31, 2017.