O'Masta v. State

District Court of Appeal of Florida

O'Masta v. State

336 So. 2d 686

CourtDistrict Court of Appeal of Florida

DecidedAugust 27, 1976

DocketNo. 75-867

StatusPublished

Cited by1 cases

This text of 336 So. 2d 686 (O'Masta 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.

Bluebook

O'Masta v. State, 336 So. 2d 686 (Fla. Ct. App. 1976).

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Opinion

PER CURIAM.

Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that the trial court erred in denying defendant’s motion for judgment of acquittal as to Count One of the information made after the close of the state’s case. In particular, count one of the information charged that the defendant did “unlawfully draw, make, utter, issue and deliver” a worthless check on December 22,1972 when in fact the check was dated December 23, 1972 thereby denoting the issuance of a post-dated check the uttering of which is not a crime under sec. 832.05(2)(a), Florida Statutes. The state suggests that notwithstanding the allegations contained in the information, the evidence presented did in fact support the uttering of the check in question on December 23, 1972. Such a variance between the allegations and proof was under the circumstances of this case fatal, rendering improper any conviction on that particular charge. Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972). Accordingly, no further reversible error having been made to clearly appear, the judgment and conviction of sentence as to Count One is reversed and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., ALDERMAN, J., and WILLIAMS, W. C., Ill, Associate Judge, concur.

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PER CURIAM.

Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that the trial court erred in denying defendant’s motion for judgment of acquittal as to Count One of the information made after the close of the state’s case. In particular, count one of the information charged that the defendant did “unlawfully draw, make, utter, issue and deliver” a worthless check on December 22,1972 when in fact the check was dated December 23, 1972 thereby denoting the issuance of a post-dated check the uttering of which is not a crime under sec. 832.05(2)(a), Florida Statutes. The state suggests that notwithstanding the allegations contained in the information, the evidence presented did in fact support the uttering of the check in question on December 23, 1972. Such a variance between the allegations and proof was under the circumstances of this case fatal, rendering improper any conviction on that particular charge. Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972). Accordingly, no further reversible error having been made to clearly appear, the judgment and conviction of sentence as to Count One is reversed and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., ALDERMAN, J., and WILLIAMS, W. C., Ill, Associate Judge, concur.

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Bluebook (online)

336 So. 2d 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omasta-v-state-fladistctapp-1976.

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