Issues of Time

ISSUES OF TIME

TIME FRAMES (3.140 (d)(3)):

Coderre v. State, 29 Fla. L. Weekly D2175 (Fla. 4^th DCA 2004):

No error in denying motion for judgment of acquittal based on state’s failure to show that act on which charge was based was committed during time frame alleged in information.

Defendant has not asserted that he was in any way surprised or hampered in preparing his defense, and other safeguards established by Florida Supreme Court in Tingley v. State were met.

Sanchez v. State, 29 Fla. L. Weekly D1588 (Fla. 3^rd DCA 2004):

No merit to claim that trial court’s refusal to require state to narrow time frame alleged in information mandated dismissal of charges. Record demonstrates neither an ability on state’s part to further narrow time frame nor likelihood of any prejudice to defendant flowing from inability to narrow time frame.

Discussion: A very brief opinion.

Gamble v. State, 28 Fla. L. Weekly D2761 (Fla. 2d DCA 2003):

Conviction reversed where victim’s testimony was insufficient to prove commission of the crime during the period alleged in the information.

Discussion: The victim vaguely testified that the last time the touching took place was when she was 8 or 9. The second count of the information charged lewd molestation which took effect October 1, 1999. Since the victim turned 9 on April 27, 1999 there was insufficient evidence that the act took place after the effective date of the statute, which was charged in the information.

Alonso v. State, 27 Fla. L. Weekly D2620 (Fla. 3d DCA 2002):

Trial court properly declined to dismiss information charging sexual battery on a minor and lewd, lascivious, indecent assault upon a child on ground that it did not specify exactly when the offenses.

State was properly allowed to charge offense within a date range.

Mathuus v. State, 776 So.2d 1090 (Fla. 4th DCA 2001):

No merit to claim that state failed to prove that any of charged sexual batteries to child victim occurred within time periods alleged in each count of information when child when child testified how old she was when each of the sexual batteries occurred.

State v. Generazio, 691 So.2d 609 (Fla. 4th DCA 1997): Judge Carney

In view of evidence that sexual abuse at issue occurred daily over more than eight-month period and that victim testified that he was unable to remember specifically when certain acts happened and could only testify that the acts of abuse occurred every day, it was apparent that state could not narrow time frame in which acts of child abuse alleged in dismissed counts occurred nor could it identify any separate acts.

In a case of ongoing sexual abuse of a child, where the child is unable to remember the specific dates on which he or she was abused, the allegation that the act occurred “on one or more occasion” is not per se, duplicitous.

Discussion: The 4th DCA said “Before trial commenced, the trial court directed the attention of both the state and the public defendant to Fountain v. State, 623 So.2d 572 (Fla. 1st DCA 1993). The court informed them that it understood Fountain to mean that it was error for the state, in a single count, to charge two separate and distinct offenses that may be subject to different punishments…The trial judge erred when he applied Fountain in this case.”

The appellate court looked to other states when it analyzed the problem of prosecuting sexual offenses on children. The court noted that most other states recognize that child molestation is, by its very nature, a continuous course of criminality rather than a series of successive crimes. “They have allowed the matter of how to charge these sensitive and difficult-to-define acts of sexual abuse to rest in the discretion of prosecutors.” This reasoning may also help us with statute of limitations problems. Since some child abuse charges are ongoing offenses, the case should be used in those cases also.

Audano v. State, 674 So.2d 882 (Fla. 2d DCA 1996):

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.

Discussion: The charged that the defendant committed sexual battery on the victim by placing his tongue on her vagina “beginning on or about the 3rd day of May, 1991, through the 4th day of July, 1991…” Upon request by the defense, the State filed a bill of particulars alleging the same dates. The victim testified that the act took place after July 4th, 1991. Please note that the date of the offense is not typically an element that needs to be proved, but when a bill of particulars is requested, the date becomes a necessary element to prove.

Wykle v. State, 659 So.2d 1287 (Fla. 5th DCA 1995):

No error in denying motion for judgment of acquittal as to count in which dates alleged in charging instrument varied from dates proven at trial where crime was committed before return date of charging instrument, crime was committed within applicable statute of limitations, and there was no showing that defendant was prejudiced by variance.

Discussion: The defendant was charged with 10 counts of sexual battery on a child. Count I charged the defendant with committing a sexual battery on the child between the dates of July 1, 1991 and August 31, 1991. At trial the child testified that the sexual battery charged in this count occurred between March 1, 1993 and March 31, 1993. After her testimony, the State was permitted to amend the information to read that the offense occurred between July 20, 1992 and October 31, 1992. These new dates still did not conform to the child's testimony. Since defense counsel failed to articulate any prejudice in the dates charged, the appellate court upheld the conviction.

Dell'Orfano v. State, 616 So.2d 33 (Fla. 1993):

Trial court on proper motion is required to dismiss information or indictment involving lengthy periods of time if State in a hearing cannot show clearly and convincingly that it has exhausted all reasonable means of narrowing time frames further. Where such showing is made, burden then shifts to defendant to show that defense more likely than not will be prejudiced by the lengthy time frame, through presentation of evidence and argument showing that charges as framed will hinder ability to raise alibi and other defenses.

To eliminate risk of improper multiple prosecutions for the same offense from prosecutions based on charging instruments involving lengthy periods of time, after defendant has been acquitted or convicted of any offense that was or could have been the subject of hearing at which State can show that it has exhausted all reasonable means of narrowing time frames further. Double jeopardy violation will be presumed when State attempts a successive prosecution, to extent that prosecution involves the same defendants and the same crimes against identical victims and periods of time overlapping or subsumed within those periods included in the prior charging instrument. To overcome that presumption, State must clearly and convincingly demonstrate that the newly charged offenses are genuinely distinct from those previously charged, and in this regard its due diligence may be an issue in close cases.

Wherever there is doubt that State has met its burden of clearly and convincingly demonstrating that newly charged offenses are genuinely distinct from those previously charged in instrument involving lengthy periods of time, trial court must find double jeopardy bar if it also concludes that State was either aware of or could have discovered the newly charged offenses through due diligence in the first prosecution; however, lack of due diligence would not be dispositive where State clearly and convincingly can demonstrate distinctness of the offense.

Trial court should not have applied per se rule of reversal and dismissed information charging defendant with sexual battery and other counts of assault on a child based entirely on the twenty seven month time span of the instrument, without giving State the opportunity to show clearly and convincingly at hearing that it had exhausted all reasonable means of narrowing the time frames further.

Discussion: This is the definitive case on this subject. This decision overrules both the Knight, and the Goble, decisions listed below. The Court refuses to adopt a bright line test as to when a period of time is so lengthy as to require a hearing. It also notes that the fact that a defendant may advance an alibi of short duration will not necessarily be dispositive where it is clear the defendant had access to the victim throughout the time periods in question such as where both resided in the same house at all relevant times. The State worded its information as "on one or more occasions between the 1st day of August, A.D. 1985 and the 30th day of June, A.D. 1988 inclusive." The case is currently on Appeal again based on the propriety of this language. We can thank judge Carney for helping us clarify these often debated issues. We can also thank the Supreme Court for disagreeing with him.

State v. Dell'Orfano, 592 So.2d 338 (Fla. 4th DCA 1992):

Information charging defendant with sexual battery and other counts of assault on a child over time frame of two and one half years did not per se require dismissal of information even in the absence of specific prejudice to defendant, under either rules or due process, assuming State made good effort to further narrow time period.

Discussion: This case was affirmed by the Florida Supreme Court in the above opinion. I have included the 4th DCA opinion to give the reader a better feel for the progression of the case. The State first charged the defendant with sexually abusing his daughter over a three year period. The State later reduced the time period to two and one half years. The trial court made a finding that the State made a good faith effort to narrow the time frames as much as possible. The defendant argued that the information must be dismissed pursuant to FRCP 3.140(d)(3) and 3.140(o). The trial court (Judge Carney) dismissed the information as a matter of law and the 4th DCA overruled it. The 4th DCA reviewed several appellate decisions on the same issue and distinguished them. The court apparently relies heavily on the State's efforts to narrow the time frames as much as possible. This is a excellent case with which to familiarize yourself. It will help you distinguish most cases cited by the defense.

State v. Theriault, 590 So.2d 993 (Fla. 5th DCA 1991):

Evidence Supported trial court's findings, that state violated rules of discovery by failing to set forth in information, amended information, and statement of particulars more specific time frames in which alleged sexual abuse occurred when State had ability to be more specific and that violations were willful., but dismissal of information was not the proper sanction, as defendant had not suffered actual prejudices as result of prosecutor's misconduct and alternative sanctions were available.

Discussion: This case involves a look from a different angle at the time frame issue. The defense counsel first moved to dismiss by alleging that time frames were too long. When that did not work, he moved for a speedy trial. Eventually, the State amended the information to include narrower dates and the defense objected that it was a discovery violation. This is a good case to review in case a defense attorney tries this angle of attack. Since the Supreme Court's Dell'Orfano decision, a straight up attack on the time frames has become difficult for the defense. It is now more likely that they will try attacks as the one in the instant case.

Morton v. State, 548 So.2d 788 (Fla. 2d DCA 1989):

Defendant's convictions for lewd and lascivious conduct were improper where information and jury instructions based those charges on same conduct on which defendant's conviction for sexual battery were based, even if defendant's convictions for the two crimes could have been supported by different conduct.

State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976):

Where information alleged indecent assault on a nine year old between April 1, 1974 and February 16, 1975, where a statement of particulars narrowed the date to a period of March 1 to June 1, 1974, and where the state attorney said he could not further refine the time span, there was compliance by the state with both the requirement of the bill of particulars and the requirement of due process, and the State did not have the burden of showing what it had done toward narrowing the time requirement.

Exact time is not an element of an offense and defendant cannot so make it by presenting a "possible defense of alibi."

An information or bill of particulars may properly charge a crime between two dates.

State v. Sparks, 273 So.2d 74 (Fla. 1973):

Reason for requiring a definite date in an indictment or information is to show that the prosecution is not barred by the statute of limitations.

It is not essential that date of the offense proved at trial be the date stated in the indictment or information.

Indictment or information alleging the commission of an offense "on or about" a stated date is not fatally vague in the absence of a showing that time is material to the crime charged or that the accused is prejudiced by the use of the phrase; overruling previous contrary decisions.

Other Cases:

Valid:

State v. Yzaguirre, 569 So.2d 492 (Fla. 2d DCA 1990):

"March 10, 1968 to March 10, 1970 and March 10, 1970 to March 10, 1971"

State v. Jones, 539 So.2d 535 (Fla. 3d DCA 1989):

11 months.

Lightbourne v. State, 438 So.2d 380 (Fla. 1983):

22 1/2 hours. A homicide case with good legal analysis.

Invalid:

State v. DeBianchi, 538 So.2d 984 (Fla. 4th DCA 1989):

6 years and 4 1/2 years. See Dell'Orfano for discussion.

State v. Goble, 535 So.2d 706 (Fla. 5th DCA 1988):

2 years and 8 months. (Overruled by Dell'Orfano)

State v. Garcia, 511 So.2d 714 (Fla. 2d DCA 1987):

2 years and 15 days.

Knight v. State, 506 So.2d 1182 (Fla. 5th DCA 1987):

4 years on Count I and 3 years on Count II. (Overruled by Dell'Orfano)

“ON ONE OR MORE OCCASIONS”

Skully v. State, 736 So.2d 730 (Fla. 2d DCA 1999):

Estimates of the number of incidents of sexual battery and lewd and lascivious conduct failed to support convictions on counts in addition to crimes that the victim specifically remembered and recounted; although vagueness could be inherent in cases involving methods of abuse which could not be traced to individual counts, greater specificity was required.

Discussion: The State charged the defendant with 28 counts, but the victim only had a specific recollection as to three of them. The other 25 counts basically represented estimates of how many times the victim had been sexually abused in various ways. The court ruled that this manner of charging the defendant is simply not sufficient enough. It would have been better for the State to charge three separate counts reflecting the specific memory of the victim and a few more counts charged “on one or more occasions” to reflect the various different types of sexual activity.

State v. Dell'Orfano, 651 So.2d 1213 (Fla. 4th DCA 1995):

Dismissal of information charging sexual battery upon child and indecent assault on ground that individual counts alleged multiple incidents over twenty seven month period reversed and remanded to give state opportunity to amend. Where it is reasonable and possible to distinguish between specific incidents or occurrences of offense, each separate occurrence should be contained in separate count of the accusatory document. Error to dismiss charges on ground that state could have narrowed time frame of charges and failed to do so where state showed clearly and convincingly that it exhausted all methods of narrowing the time frame.

Discussion: This Judge Carney case is weaving its way through the appellate highway for the second time on a second issue. The case was initially dismissed because the time frames were too long. The issue went to the Florida Supreme Court which overruled the judges decision and stated that there is no per se limit on time frames that can be used. The instant case deals with the issue of charging multiple crimes in one count (on one or more occasions between...) The 4th DCA basically ruled that if the victim can relate a specific number of incidents, it must be charged as multiple counts. If the victim cannot possibly recall the number of occasion, it can be charged in one count.

Cornelius v. State, 448 So.2d 86 (Fla. 2d DCA 1984):

Evidence was insufficient to support conviction on fourteen of fifteen counts of lewd assault, where victim could not remember when or how often assaults subsequent to the first occurred, or whether assault occurred more than once.

Discussion: The State charged the defendant in this case with one lewd assault for each month from December 1979 through January 1981, inclusive. This case presents a problem we encounter frequently. The victim cannot remember detailed events, but says it happened about once a week for five years. We are then places in the position of charging either "on one or more occasions" or one count for every week in the time period. If the victim cannot recall specifics of each charged count, they may be dismissed. Although this case represents a situation where the victim could not remember anything (and thus distinguishable) it may be cited by the defense to argue against charging in this manner.