Fatal Variance

50 Florida cases classified under this topic · sorted by citation count · see the citation graph · browse and sort

• State v. Sobel
  363 So. 2d 324· Fla.· 1978-07-20 ·cited 80×
  The Florida Supreme Court reversed the Third District Court of Appeal and upheld the defendant's conviction for drug offenses, holding that the state's loss of an unintelligible tape recording did not violate due process where the trial judge found no prejudice to the defendant,
• Hayes v. United States
  329 F.2d 209· 8th Cir.· 1964-03-30 ·cited 66×
  The court held that the evidence supported a finding of a single overall conspiracy and that the jury instructions, when read as a whole, were not prejudicially erroneous. The refusal to allow government counsel to testify was within the trial court's discretion.
• United States v. Postma
  242 F.2d 488· 2d Cir.· 1957-02-21 ·cited 52×
  The court denied petitions for rehearing, finding no fatal variance in the conspiracy charge and that evidence was properly admitted. The court also stayed the mandate pending a certiorari application.
• Heisler v. United States
  394 F.2d 692· 9th Cir.· 1968-04-26 ·cited 44×
  The court held that a variance between the indictment and proof regarding the denomination of a counterfeit note was harmless error, and the subsequent amendment order was a nullity that did not invalidate the conviction.
• State v. Larzelere
  979 So. 2d 195· Fla.· 2008-02-28 ·cited 42×
  Virginia Larzelere was convicted of murdering her husband and sentenced to death. The Florida Supreme Court affirmed the denial of her motion to vacate her conviction but affirmed the trial court's grant of a new sentencing proceeding, finding that her trial counsel provided inef
• Johnson v. W.J. Estelle, Jr.
  704 F.2d 232· 5th Cir.· 1983-05-06 ·cited 42×
  The court held that the district court erred in dismissing the claim of ineffective assistance of counsel without an evidentiary hearing, as the allegations, if true, could establish a constitutional violation.
• Canella v. United States
  157 F.2d 470· 9th Cir.· 1946-09-16 ·cited 42×
  The court held that a variance between charging a single conspiracy and proving multiple conspiracies is fatal if it affects the substantial rights of the accused, particularly due to the "sheer difference in numbers" of conspiracies and defendants, leading to a risk of guilt tra
• Thomas v. State
  183 So. 2d 297· Fla. 3d DCA· 1966-02-22 ·cited 41×
  The court held that the evidence was sufficient to support a conviction for assault with intent to commit robbery, as the use of a knife and the victim's actual fear were not essential elements when force and violence were proven.
• United States v. Abraham
  541 F.2d 1234· 7th Cir.· 1976-09-09 ·cited 36×
  The court held that a jury instruction on multiple conspiracies is required when there is a possibility of variance between the indictment and the evidence, allowing the jury to determine if one or several agreements existed.
• United States v. Horton
  526 F.2d 884· 5th Cir.· 1976-02-05 ·cited 34×
  The court held that the use of bank deposit evidence was proper corroboration and did not create a fatal variance, and that the refusal of a limiting instruction was harmless error. The use of prior statements to refresh witness memory and the jury selection plan were also upheld
• United States v. Mosley
  786 F.2d 1330· 7th Cir.· 1986-03-26 ·cited 32×
  The court affirmed the defendant's conviction, finding the indictment sufficient and no fatal variance between the indictment and the evidence presented at trial.
• Lucas v. United States
  343 F.2d 1· 8th Cir.· 1965-03-30 ·cited 32×
  The court held that the trial court did not abuse its discretion in permitting the government to reopen its case, and that sufficient evidence supported the jury's verdict of guilt.
• United States v. Anderson
  618 F.2d 487· 8th Cir.· 1980-04-03 ·cited 26×
  The court held that the defendant's conviction for mail fraud was proper, as the delivery of checks by IRS agents to post offices constituted a mailing under the statute, and that the trial court did not err in its evidentiary rulings regarding a handwriting expert's report and p
• United States v. Burman
  584 F.2d 1354· 4th Cir.· 1978-10-13 ·cited 26×
  The court held that the evidence supported a single conspiracy conviction and that a special parole term was properly imposed for conspiracy to violate narcotic laws by reference to the substantive offense statute.
• Hildwin v. State
  951 So. 2d 784· Fla.· 2006-12-14 ·cited 22×
  Paul Hildwin appeals the denial of a motion to vacate his first-degree murder conviction and death sentence based on newly discovered DNA evidence excluding him as the source of bodily fluids found at the crime scene. The Florida Supreme Court affirmed the trial court's denial, h
• United States v. Lipkis
  770 F.2d 1447· 9th Cir.· 1985-09-10 ·cited 22×
  The court held that the defendant's prior non-immunized statements provided an independent source for evidence, and that the indictment was not fatally varied from the proof presented at trial.
• Stephens v. United States
  354 F.2d 999· 5th Cir.· 1965-12-29 ·cited 20×
  The court held that the evidence presented was sufficient to sustain the conviction for mail fraud.
• United States v. Alga Hope, Jr.
  861 F.2d 1574· 11th Cir.· 1988-12-27 ·cited 18×
  The court held that Count I of the indictment fails to state a violation of 18 U.S.C. § 371 because it alleges neither a direct nor indirect fraud on the United States, and affirming the district court's dismissal is appropriate.
• United States v. Young
  862 F.2d 815· 10th Cir.· 1988-12-09 ·cited 16×
  The court held that the government must prove the defendant had the specific intent and capacity to manufacture a controlled substance on the date specified in the indictment.
• United States v. Howard
  751 F.2d 336· 10th Cir.· 1984-12-27 ·cited 16×
  The court held that the defendants' convictions were supported by the evidence, and their various claims of error, including fatal variance, inconsistent acquittal, denial of confrontation, improper admission of evidence, and denial of severance, were without merit.
• United States v. Diana
  605 F.2d 1307· 4th Cir.· 1979-08-29 ·cited 16×
  The government's failure to provide a satisfactory explanation for the delay in judicially sealing wiretap evidence, as required by 18 U.S.C. § 2518(8)(a), necessitates suppression of the evidence.
• United States v. Greenwood
  974 F.2d 1449· 5th Cir.· 1992-10-02 ·cited 14×
  The court held that it has jurisdiction over the government's cross-appeal of sentences and that the district court erred in sentencing based on a lower schedule of controlled substances. The court affirmed convictions but vacated sentences for resentencing.
• United States v. Filemon Sotelo Sanchez
  961 F.2d 1169· 5th Cir.· 1992-05-19 ·cited 14×
  The court affirmed convictions for conspiracy, possession with intent to distribute, and telephone use, finding sufficient evidence and rejecting claims of prosecutorial misconduct and variance. It also declined to review an ineffective assistance of counsel claim not raised belo
• Johnson v. State
  188 So. 2d 61· Fla. 3d DCA· 1966-06-21 ·cited 14×
  Elsie Johnson appealed her conviction for breaking and entering a dwelling house with intent to commit a felony and the revocation of her probation on a prior worthless check conviction. The appellate court affirmed the probation revocation but reversed the breaking and entering
• Jiminez v. State
  231 So. 2d 26· Fla. 3d DCA· 1970-02-03 ·cited 12×
  Angel Jiminez was convicted of conspiracy to commit a felony, unlawful sale of heroin, and unlawful possession of heroin. The Florida District Court of Appeal affirmed the conspiracy and possession convictions but reversed the heroin sale conviction because the state proved sale
• Bennie LE REA v. Cochran
  115 So. 2d 545· Fla.· 1959-11-13 ·cited 12×
  The acquittal on the first charge of grand larceny did not bar prosecution on the second charge because the offenses were not the same due to a fatal variance in the alleged owner of the property.
• Jonas v. Burks
  87 Fla. 68· Fla.· 1924-01-29 ·cited 12×
  This case involves a lawsuit for services rendered, where the plaintiff sued two defendants jointly. The court reversed the judgment because the evidence did not support a joint liability, finding a fatal variance between the allegations and the proof presented.
• Hunter v. State OF NEW Mexico
  916 F.2d 595· 10th Cir.· 1990-10-18 ·cited 10×
  A constructive amendment of the indictment occurred when the jury instruction allowed conviction for first-degree criminal sexual penetration based on digital penetration prior to the statutory change, which constituted a lesser offense, thus requiring reversal of that conviction
• Nacius Julian v. State
  545 So. 2d 347· Fla. 1st DCA· 1989-05-28 ·cited 10×
  Nacius Julian was convicted of trafficking in cocaine by possession of 400+ grams and trafficking by sale/delivery of 28-200 grams. The First District Court of Appeal affirmed, holding that the distinctive appearance of the crack cocaine in the suitcase delivered to an undercover
• Ingleton v. State
  700 So. 2d 735· Fla. 5th DCA· 1997-09-26 ·cited 8×
  Edward Ingleton appeals his convictions for first-degree felony murder, attempted sexual battery, and grand theft of a motor vehicle in connection with the death of Wendy Prior. The court affirms, holding that the state's variance in murder theory from strangulation to drug overd
• United States v. Universal Trade & Indus., Inc.
  695 F.2d 1151· 9th Cir.· 1983-01-04 ·cited 8×
  The court held that there was no fatal variance between the indictment and the proof, and the evidence was sufficient to support the convictions for Medi-Cal abuse.
• Humphries v. United States
  310 F.2d 377· 8th Cir.· 1962-12-06 ·cited 6×
  The court held that the indictment was sufficient, there was no fatal variance, no entrapment, and the co-defendant's guilty plea was properly handled.
• Green v. State
  714 So. 2d 594· Fla. 2d DCA· 1998-07-08 ·cited 4×
  The court held that a fatal variance between the information charging burglary and the State's evidence at trial requires reversal of the conviction.
• United States v. Hunt
  877 F.2d 833· 10th Cir.· 1989-06-12 ·cited 4×
  The court held that there was sufficient evidence to convict the defendant of conspiracy and that the search warrant affidavits were sufficient, affirming the convictions and sentences.
• Crosky v. The State of Frorida
  46 Fla. 122· Fla.· 1903-06-01 ·cited 4×
  Jacob Crosky was convicted of breaking and entering a store with intent to steal property alleged to belong to W.N. Woods. The Florida Supreme Court reversed the conviction, finding a fatal variance between the indictment and evidence because the State failed to prove the stolen
• United States v. Chandler
  376 F.3d 1303· 11th Cir.· 2004-07-19 ·cited 3×
  The government charged four defendants with conspiracy to commit mail fraud under 18 U.S.C. § 371 for their alleged participation in a scheme to redeem stolen McDonald's promotional game stamps. The indictment alleged that Jerome Jacobson, the security director for the company ma
• Wescott v. State
  72 So. 3d 304· Fla. 1st DCA· 2011-10-19 ·cited 2×
  Justin Wescott appealed his convictions for grand theft, burglary, and providing a false name to law enforcement. The Florida First District Court of Appeal reversed and remanded for a new trial on all counts, finding two fundamental errors: conviction on an uncharged crime varia
• United States v. Stiles
  965 F.2d 353· 7th Cir.· 1992-06-04 ·cited 2×
  The court held that there was no fatal variance between the indictment and the proof at trial, as the evidence sufficiently demonstrated the defendant's confinement was by virtue of a 1983 conviction.
• United States v. Efronson
  505 F.2d 104· 5th Cir.· 1974-12-13 ·cited 2×
  The court held that the evidence was sufficient to sustain convictions for conspiracy to violate statutes proscribing counterfeit United States obligations.
• Cannon v. State
  289 So. 2d 445· Fla. 2d DCA· 1974-02-06 ·cited 2×
  Gary Cannon was convicted of receiving and concealing stolen property and sentenced to six months to five years imprisonment. On appeal, he challenged the sufficiency of evidence and alleged a fatal variance between the charging information and proof regarding ownership of the st
• Howlett v. State
  260 So. 2d 878· Fla. 4th DCA· 1972-02-17 ·cited 2×
  The appellate court affirmed a conviction for larceny of a truck, holding that a variance between the alleged date of the offense and the date proven at trial was not fatal. The court reasoned that the defense was based on a claim of purchase, not an alibi, making the exact date
• State v. White
  214 So. 2d 884· Fla. 3d DCA· 1968-10-29 ·cited 2×
  The State sought certiorari to overturn a Circuit Court's reversal of White's misdemeanor convictions for careless driving, leaving the scene of an accident, and driving under the influence. The District Court held that minor discrepancies in the specific street address between t
• United States v. Phillips
  270 F.2d 175· 2d Cir.· 1959-09-14 ·cited 2×
  The court held that the evidence supported the convictions for conspiracy and sale of narcotics, and that defendants' claims of entrapment and variance lacked merit.
• Long v. State
  191 So. 3d 554· Fla. 4th DCA· 2016-05-25 ·cited 1×
  Roland Long was convicted of conspiracy to manufacture methamphetamine based on an information alleging conspiracy with "Ray Ray Webb," but the only evidence at trial showed conspiracy with "Ray Ray Hicks." The Fourth District Court of Appeal reversed, finding this material varia
• Val Viladoine v. State
  268 So. 3d 804· Fla. 4th DCA· 2019-04-03
  Val Viladoine was convicted of sexual battery upon a child under twelve based on Count I, which charged penetration with his penis. The trial court improperly amended the charging information mid-trial to add penetration by an object after the victim's testimony described a pink
• Perruzzi v. State
  49 Fla. Supp. 206· Flagler Cty. Cir. Ct.· 1979-08-07
  In this traffic case, the circuit court reversed defendant's conviction for speeding, finding a fatal variance between the time charged in the citation and the time proven at trial, and holding that radar evidence was inadmissible without compliance with statutory certification r
• Grimsley v. State
  251 So. 2d 671· Fla. 2d DCA· 1971-09-01
  Gayle Grimsley appeals her conviction for aggravated assault, challenging the admission of her statements to police and claiming a fatal variance between the charging document and the evidence. The court upheld her conviction, finding her waiver of counsel was valid and the varia
• Roth v. Bowman
  103 Fla. 923· Fla.· 1931-12-21
  Roth sought to enjoin execution on a judgment by setting off a debt owed to him by the Bowmans under a lease. The Florida Supreme Court held that a plea of set-off cannot be used as an equitable defense in a common law action, reversing the lower court's dismissal of the bill of
• Rogers v. The State oFlorida
  97 Fla. 290· Fla.· 1929-02-28
  This case involves a conviction for forgery and uttering a forged instrument. The appellate court reversed the conviction due to a fatal variance between the forged instrument described in the indictment and the instrument presented as evidence.