MacCourt v. State

District Court of Appeal of Florida

MacCourt v. State

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

CourtDistrict Court of Appeal of Florida

DecidedMay 24, 1974

DocketNos. 73-510 and 73-511

StatusPublished

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This text of 296 So. 2d 89 (MacCourt v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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MacCourt v. State, 296 So. 2d 89, 1974 Fla. App. LEXIS 6932 (Fla. Ct. App. 1974).

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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.

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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.

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296 So. 2d 89, 1974 Fla. App. LEXIS 6932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maccourt-v-state-fladistctapp-1974.

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