MacCourt v. State

296 So. 2d 89, 1974 Fla. App. LEXIS 6932

Opinion

PER CURIAM.

Based upon our consideration of the briefs and oral argument and from a review of the record of the proceedings below we are of the opinion that the defendants have failed to demonstrate reversible error. With particular regard to the variance between the information, the bill of particulars and the proof adduced at trial we are of the view that no prejudice was shown by the defendants to have resulted from, such variance. Barber v. State, Fla.App.1971, 243 So.2d 2; Fitzgerald v. State, Fla.App.1969, 227 So.2d 45; Hunter v. State, Fla.App.1967, 200 So.2d 577; Hale v. State, Fla.App.1973, 273 So.2d 145; cf. Crowell v. State, Fla.App.1970, 238 So.2d 690.

Our determination that no reversible error has been shown should not be construed as condoning the practice of a member of the prosecutor’s staff testifying as “an expert witness” on behalf of the state. Cf. People v. Mann, 27 Ill.2d 135, 188 N.E.2d 665 (1963). Although the assistant state attorney who was called to testify in the trial below was not involved in the prosecution of the case we find this practice to be highly undesirable. Further repetition will not be countenanced.

Affirmed.

MAGER and DOWNEY, JJ., concur. WALDEN, J., dissents without opinion.