Variance Between Allegation And Proof

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

• Fitzgerald v. State
  227 So. 2d 45· Fla. 3d DCA· 1969-10-14 ·cited 44×
  A variance between allegations in an information and proof at trial is not fatal if the defendant was adequately advised of the charge and particulars proved, but a conviction must be reversed when the prosecutor makes statements in closing argument that go beyond reasonable infe
• Wilkinson v. Pensacola & Atl. R.R. Co.
  35 Fla. 82· Fla.· 1895-01-01 ·cited 42×
  The court affirmed a lower court's ruling, holding that the plaintiff failed to prove the specific cause of action alleged in his declaration. The plaintiff claimed a railroad fireman negligently threw wood from a train, but the evidence did not support this specific allegation.
• Browning v. State
  133 So. 847· Fla.· 1931-03-04 ·cited 39×
  The Florida Supreme Court reversed a conviction against a bank director for violating loan limits, finding a fatal variance between the indictment's allegations and the evidence presented. The court held that the evidence did not sufficiently prove the prior indebtedness constitu
• United States v. Davis
  436 F.2d 679· 10th Cir.· 1971-01-25 ·cited 32×
  The court held that the trial court did not abuse its discretion in denying the defendant Dennie's motion for a continuance, nor did it err in denying Davis' motions for severance, suppression, and dismissal of count three.
• Noyes S. Collins v. State
  33 Fla. 429· Fla.· 1894-01-01 ·cited 31×
  Collins, president of Lake City Bank, was convicted of embezzlement for receiving a $43.50 deposit from customers. The Florida Supreme Court reversed, holding that the indictment fatally conflated provisions for individual bankers with those for corporate bank officers, and that
• Tatom v. S. A. L. R. R. Co.
  113 So. 671· Fla.· 1927-05-16 ·cited 29×
  The court affirmed a judgment for the railroad company after the plaintiff's husband, an engineer, was killed by striking his head on a wood rack. The court found that the engineer's own actions in leaning out of the locomotive cab to inspect machinery, despite knowing of the woo
• Johnson v. Fla. Brewing Co.
  90 Fla. 148· Fla.· 1925-07-15 ·cited 29×
  This case concerns whether a plaintiff alleging ownership of a vehicle in a negligence lawsuit can recover damages if the evidence shows they were a bailee, not the legal owner. The court found that the plaintiff's allegation of ownership was admitted by the defendant's plea of "
• Talton A. Branch v. State
  94 Fla. 286· Fla.· 1927-07-15 ·cited 28×
  This case addresses whether a variance between the name of the victim alleged in an information and the name proven at trial is fatal to a conviction. The court held that a variance is not fatal if the evidence establishes the identity of the victim and protects the defendant fro
• Adirim v. State
  350 So. 2d 1082· Fla. 3d DCA· 1977-09-20 ·cited 26×
  The court held that the co-conspirator rule does not require independent proof for the admissibility of the accused's own acts and statements, and that the variance between the alleged owner and the actual custodian of property in a burglary charge was not reversible error.
• United States v. Hall
  632 F.2d 500· 5th Cir.· 1980-12-10 ·cited 22×
  The court held that the evidence, including expert handwriting analysis of a forged endorsement, was sufficient to support a conviction for possession of a stolen government check.
• United States v. Browne
  225 F.2d 751· 7th Cir.· 1955-08-17 ·cited 22×
  The dissenting judge would affirm the conviction, believing the evidence supported the jury's verdict on mail fraud charges.
• Marx Bros. v. Culpepper & Dupont
  40 Fla. 322· Fla.· 1898-06-01 ·cited 21×
  Marx Brothers sued Culpepper & Dupont for goods sold and delivered. The defendants pleaded that they were not partners, and the lower court sustained this plea, quashing the action. The Florida Supreme Court reversed, holding that partnership status need not be alleged or proven
• Grissom v. State
  405 So. 2d 291· Fla. 1st DCA· 1981-10-30 ·cited 20×
  Grissom appeals his grand theft conviction, arguing that the charging document alleged theft of a 'cow' but the state proved taking of a 'male calf,' creating a material variance. The court affirmed, holding the variance immaterial because the defendant was not misled or prejudic
• Nunnally v. United States
  291 F.2d 205· 5th Cir.· 1961-06-12 ·cited 18×
  The court held that there was sufficient evidence to support a Mann Act conviction, rejecting claims of insufficient evidence and fatal variance.
• Taylor v. State
  672 So. 2d 580· Fla. 1st DCA· 1996-04-16 ·cited 16×
  The court affirmed the conviction for aggravated battery, reversed the conviction for resisting arrest without violence, and directed the trial court to strike unauthorized costs from the written order.
• Rogert L. Dowst v. State
  336 So. 2d 375· Fla. 1st DCA· 1976-03-19 ·cited 16×
  A 16-year-old defendant appeals his conviction on three counts of grand larceny, challenging the admissibility of tape-recorded confessions obtained after he was denied permission to call his parents in violation of Florida Statute § 39.03(3)(a). The court reversed and remanded f
• Vander Shiver v. State
  103 Fla. 871· Fla.· 1931-12-11 ·cited 16×
  The Florida Supreme Court affirmed a conviction for cow larceny, holding that proof of lawful custody and right to possession is sufficient to establish ownership as laid in the indictment, even if the defendant claims permission to sell the property.
• Donovan Studstill and John Lee Studstill v. State
  83 Fla. 623· Fla.· 1922-05-19 ·cited 14×
  Donovan and John Lee Studstill were convicted of willfully and maliciously cutting a fence belonging to land not their own under Florida law. The Florida Supreme Court affirmed the conviction, rejecting arguments that the indictment was insufficient and that testimony should have
• Enson v. State
  58 Fla. 37· Fla.· 1909-06-01 ·cited 14×
  The Florida Supreme Court reviewed a grand larceny conviction where the defendant argued a fatal variance between the information and the evidence regarding the description of stolen currency. The court held that the prosecution's knowledge of a better description, not the mere a
• Mobley v. State
  57 Fla. 22· Fla.· 1909-01-01 ·cited 14×
  H. O. Mobley was convicted of larceny of a cow in Hillsborough County, but the evidence at trial showed he stole a steer instead. The Florida Supreme Court reversed his conviction, holding that a variance between the charged animal (cow) and the proven animal (steer) was fatal to
• Jacobs v. State
  46 Fla. 157· Fla.· 1903-06-01 ·cited 14×
  William Jacobs was convicted of carnal abuse of a female child and sentenced to death. The Florida Supreme Court reversed his conviction because of a fatal variance between the indictment, which named the victim as "Rosa Lee Nelson," and the proof at trial, which established her
• Taylor v. State
  436 So. 2d 124· Fla. 3d DCA· 1982-04-20 ·cited 12×
  Upon en banc rehearing, the trial court did not violate due process by amending the probation violation affidavit to correct the victim's name before trial where the defendant had actual notice of the correct victim through prior depositions and the substantive charging document.
• Stewart v. State
  122 So. 2d 34· Fla. 2d DCA· 1960-07-15 ·cited 12×
  Charles Stewart was convicted of breaking and entering Bill's Tavern with intent to commit theft, but the Florida District Court of Appeal reversed because the state failed to prove that the alleged owner, Wendell Tam, actually owned or possessed the property as charged. The cour
• Key W. Elec. Co. v. Roberts
  81 Fla. 743· Fla.· 1921-05-19 ·cited 12×
  Key West Electric Company challenges a $5,000 judgment for the wrongful death of a boy electrocuted on a metal roof when wires with worn insulation came into contact with a metal gutter and gas pipe. The Florida Supreme Court reverses, holding that the company owed no duty of the
• Cooper v. State
  356 So. 2d 911· Fla. 3d DCA· 1978-03-28 ·cited 10×
  Mark Cooper was convicted after a bench trial of malicious destruction of personal property (misdemeanor) and sentenced to probation with a $500 fine and $350 restitution. On appeal, Cooper challenged the trial court's refusal to conduct an in camera inspection of a witness state
• A. L. Smith de bonis non of the Estate of Geo. N. Bressler v. Kleiser
  91 Fla. 84· Fla.· 1926-01-23 ·cited 10×
  A. H. Kleiser sought to foreclose a mortgage on property in Lake County, Florida, but the Florida Supreme Court reversed the lower court's decree, holding that Kleiser lacked standing to bring the foreclosure suit because he was not the true owner of the mortgage note but merely
• Gustave Loeffler v. City of W. Tampa
  55 Fla. 276· Fla.· 1908-01-01 ·cited 10×
  In this negligence case, the Florida Supreme Court affirmed the trial court's sustaining of a demurrer to the evidence, holding that plaintiff failed to prove the cause of action as alleged. The court rejected plaintiff's argument that the demurrer contained contradictory stateme
• Broad Williams v. State
  42 Fla. 205· Fla.· 1900-01-01 ·cited 10×
  The Florida Supreme Court upheld the robbery convictions of Broad Williams, Ed Williams, Walter Williams, Missie Williams, and Charlie Williams, rejecting challenges to the information's validity, the admissibility of testimony from co-defendants and a severed defendant, and the
• McCLENDON v. State
  117 So. 2d 506· Fla. 1st DCA· 1960-01-19 ·cited 9×
  The State need not prove that a named property owner was duly and legally incorporated as an essential element of a receiving stolen property conviction; the corporate status serves only as a description or identification of the owner, and ownership may be sufficiently establishe
• Rhodes v. State
  74 Fla. 230· Fla.· 1917-10-29 ·cited 8×
  The court affirmed a conviction for assault with intent to murder, holding that a slight misspelling of the victim's name in the charging document did not create a fatal variance because the misspelled name and the correct name were idem sonans (sounded alike). This case clarifie
• Mitchell v. State
  333 So. 2d 89· Fla. 1st DCA· 1976-06-09 ·cited 7×
  The Florida District Court of Appeal reversed Christine Mitchell's conviction for heroin sale because the trial court improperly instructed the jury that it could convict her of committing the offense on a date other than December 14, 1974, when the State presented evidence estab
• Hall v. United States
  403 F.2d 649· 5th Cir.· 1968-11-19 ·cited 6×
  The court held that the trial court did not err in its rulings or instructions, and the evidence was sufficient to sustain the verdict.
• Bloneva Clark v. State
  293 So. 2d 768· Fla. 3d DCA· 1974-04-02 ·cited 5×
  Clark was convicted of grand larceny after a bench trial. She appealed arguing there was a material variance between the information, which alleged the stolen dresses belonged to LaVerne Wharton, and the trial proof that Sears owned them. The court affirmed, holding the variance
• Harris Brown v. State
  92 Fla. 538· Fla.· 1926-08-05 ·cited 5×
  The Florida Supreme Court reversed a conviction for embezzlement, holding that the defendant's good-faith belief in his right to retain a check, even if mistaken, did not meet the "fraudulent intent" requirement for embezzlement. This case clarifies that a bona fide claim of righ
• Donaldson v. State
  356 So. 2d 351· Fla. 1st DCA· 1978-02-27 ·cited 4×
  Donaldson appeals his conviction for assault in a lewd, lascivious, or indecent manner on a female child under 14. The appellate court affirmed the conviction, rejecting arguments that the indictment was defective, the evidence insufficient, jury instructions improper, and jury p
• Walks v. State
  123 Fla. 700· Fla.· 1936-04-11 ·cited 4×
  Vincent Walks was convicted in Dade County Criminal Court of breaking and entering a dwelling with intent to commit larceny and assault and battery. The Florida Supreme Court affirmed the conviction, rejecting challenges to jury voir dire questioning, sufficiency of identificatio
• Gardner v. State
  739 So. 2d 129· Fla. 3d DCA· 1999-07-14 ·cited 2×
  Albert Gardner appeals his conviction for sale and possession of cocaine, arguing the State failed to prove the crimes occurred at the exact time (10:40 p.m.) specified in the statement of particulars. The Florida District Court of Appeal affirms, holding that a ten-minute varian
• O'Brien v. State
  128 So. 2d 621· Fla. 3d DCA· 1961-04-03 ·cited 2×
  John T. O'Brien was charged with embezzlement/larceny by a bailee of $1,900 from Katherine Coviello between February 5-15, 1959. The appellate court reversed his conviction and remanded with instructions to enter an acquittal, finding the state's proof failed to establish that O'
• Navarro v. United States
  218 F.2d 360· 5th Cir.· 1955-01-21 ·cited 2×
  The court held that the evidence supported a conviction for embezzlement, not merely theft, despite the defendant's argument of a fatal variance.
• Salerno v. State
  347 So. 2d 659· Fla. 4th DCA· 1977-05-27
  Peter Salerno was convicted of three counts of breaking and entering with intent to commit grand larceny. The Florida Fourth District Court of Appeal affirmed one conviction but reversed two convictions due to the State's failure to prove ownership of the burglarized dwellings as
• State v. Bomback
  12 Fla. Supp. 60· Dade Cty. Cir. Ct.· 1957-11-06
• Sipos v. State
  90 So. 2d 113· Fla.· 1956-10-24
  Joseph Sipos was charged with breaking and entering a building owned by "Sterchi Brothers, Inc." but the information was amended during trial to reflect the true owner as "Sterchi Brothers Stores, Inc." The Florida Supreme Court reversed, holding that the amendment of a material
• Owens v. Swope
  227 F.2d 796· 10th Cir.· 1955-11-07
  The court held that the petitioner was not twice placed in jeopardy for the same offense, and the sentence on the second information was not void.
• Seminole Lumber & Exp. Co. v. The W. T. Kuhns Lumber Co.
  92 Fla. 916· Fla.· 1926-11-19
  Seminole Lumber & Export Company sued W. T. Kuhns Lumber Company for breach of a contract to purchase 365,000 feet of lumber at specified prices. Kuhns accepted and paid for only 213,615 feet and refused the remaining 112,026 feet, claiming market prices had fallen sharply. The t
• Davis v. State
  74 Fla. 100· Fla.· 1917-10-17
  The Florida Supreme Court reversed a grand larceny conviction because the trial court improperly excluded evidence relevant to the defendant's credibility and the ownership of the stolen property. The excluded evidence could have supported the defendant's claim that he had consen