
    Gerald STANG, Appellant, v. STATE of Florida, Appellee.
    No. 79-2286.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 7, 1981.
    
      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant argues that his otherwise proper conviction on two counts of forgery should be reversed solely because the information and statement of particulars under which the state went to trial erroneously listed April 27, 1979 as the date of the offenses. As appellant knew at the time of trial, the offenses had occurred a week earlier, on April 20. After several witnesses had testified, the state realized that the date listed in the charging documents was incorrect and successfully moved to amend the statement of particulars. The trial court then essentially sought to start the trial over by suggesting that appellant recall all the witnesses who had already testified, and make an amended opening statement to the jury if he so desired. The trial proceeded, and a tape recording of appellant confessing to the crimes was introduced in evidence. As noted, appellant was convicted. We affirm.

At issue is whether an otherwise valid conviction must be voided whenever the state proceeds to trial under charging documents containing an erroneous date. Certain language in State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. denied 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) appears to support appellant’s contention that the “harmless error” rule cannot be applied in such situations.

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; . . . the state (may not) remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.

298 So.2d at 378, 379.

However, given the holding in Beamon (that defendant, who obtained a judgment of acquittal on grounds that the proof adduced at trial regarding the date of the offense differed from the date alleged in the bill of particulars, was estopped from asserting a double jeopardy defense in a retrial based on the same incident), it is clear that the aforecited language is dicta. The Beamon dicta was evidently found not controlling by this court in Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979), affirmed 397 So.2d 288 (Fla. 1981) in which, after jeopardy had attached, the state was permitted to amend a statement of particulars to correct a one-day discrepancy as to the date of the offense. The court stated:

The granting of the state’s motion to amend the statement of particulars did not so prejudice the appellant as to hinder him in the preparation or presentation of his defense. To allow the defendant in a criminal case, with full knowledge of the crime alleged against him and with knowledge of a technical error of one day’s date on a pleading, to wait in ambush for the state until the jury is sworn then spring his trap is tantamount to asking the court to referee a game of hide and seek.

372 So.2d at 533, 534. This language appears especially pertinent to the case at bar.

In deciding Hoffman, our court relied heavily on Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972), in which a five-day variance between the true date of the offense and the date as alleged in the bill of particulars was held immaterial. The Fifth District Court of Appeal has recently concluded that Howlett was impliedly overruled by Beamon, but seeks to explain the Hoffman holding on the basis that the permitted amendment to the statement of particulars occurred before any evidence was submitted. Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980). This attempt to separate the Howlett and Hoffman holdings is unconvincing since jeopardy had already attached in both cases. There would not seem to be any compelling logic behind a scheme whereby the state may amend an erroneous bill of particulars after the jury has been impaneled and sworn, as in Hoffman, but may not amend an erroneous bill of particulars after several witnesses have testified where, as here, the trial court has afforded defendant the option of starting the trial over with the same jury.

In Jefferson, the Fifth District Court of Appeal reversed defendant’s conviction on the basis that the proof adduced at trial fixed the date of the crimes as June 18-19 while the bill of particulars specified the date as June 20 or June 21. While it is possible to distinguish Jefferson from the current case on the basis that in Jefferson, the state never sought to amend the bill of particulars to conform with the evidence as adduced at trial, it is clear that Jefferson is in direct conflict with our earlier holding in Howlett.

It is ironic that appellant relies on the Beamon dicta to void his conviction when the Beamon holding virtually assures that appellant may be retried for the same offenses under a proper information and statement of particulars. In this light, we recall the language of the United States Supreme Court in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974): “The law does not require that a defendant receive a perfect trial, only a fair one.” 417 U.S. at 448, 94 S.Ct. at 2365, 41 L.Ed.2d at 194. In view of the trial court’s willingness to allow the defendant to restart this trial following the permitted amendment to the statement of particulars, it would be difficult not to characterize the trial as “fair.”

However, recognizing that Judge An-stead in his dissent is of the opinion that the Beamon decision out of our Supreme Court is contrary to our holding here and being of the opinion that the matter is one of great public importance, we hereby certify the following question:

DOES THE ABOVE QUOTED DICTA FROM BEAMON DEMAND REVERSAL OF THE CASE AT BAR OR DOES THE RECENT SUPREME COURT VERSION OF HOFFMAN PERMIT AF-FIRMANCE?

AFFIRMED.

LETTS, C. J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

LETTS, Chief Judge,

concurring specially-

Justice may indeed be blind, but Judges should not be blinded. It is apparent that the defendant knew all along with what crime he was charged and on what date it was committed. Nonetheless he chose to wait in ambush, secure in the thought that he could defeat the prosecution by exposing a scrivener’s error of which he was only too well aware. Judge Schwartz speaking for the Third District has dubbed such tactics as “gotcha” defenses and has denounced them. See Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980).

Notwithstanding Judge Anstead’s dissent, it is hard for me to envision that this is the kind of prejudice that allows a defendant to go free. The accused visited the result upon himself by relying on a technical mistake as his sole defense and should not now be heard to complain. In so saying, however, I cannot fault the defense for the tactics employed. After all they had the Beamon decision to lean on. The answer to our certification will soon enough establish if they were correct and we are wrong.

I need search for no citation in support of the basic premise that our function is to see that justice is done, not done in. Here it would appear to me that if we reverse this conviction, justice will not be served. Moreover, the Supreme Court affirmance of our Hoffman decision indicates that enquiry by the trial judge into the circumstances, coupled with prior knowledge by the defense, goes a long way toward permitting any amendment. Under the totality of the facts now before us I am convinced the amendment should have been allowed.

ANSTEAD, Judge,

dissenting:

In my view this case should be reversed under the holdings in State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. denied 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) and Hoffman, supra. In Beamon the Supreme Court stated:

Where there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; .. . the state (may not) remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.

298 So.2d at 378, 379.

In Hoffman, the holding in Beamon was modified to the extent that the state may now be allowed to amend if the state can demonstrate a lack of prejudice to the defendant. In this case the state wholly failed to demonstrate such a lack of prejudice. To the contrary, prejudice affirmatively appears on the face of the record.

This was a prosecution for forgery. In both the information and a bill of particulars the state specified the date of the offense to be a time that later turned out to be in error by one week. In his opening statement at trial counsel for the defendant told the jury that his sole defense was that the state would be unable to prove the date specified in the information and bill of particulars and that the defense would be able to affirmatively establish that any checks involved were passed on an entirely different date. In a phrase, the defense put all its eggs in one basket, relying on the state’s inability to prove the critical date. Subsequently, the state called a number of witnesses, and sure enough, it turned out that indeed the state had gotten the date wrong. However, the state did not move to amend the information and bill of particulars until it had presented virtually all of the evidence it had as to the date of the offense. At that time it finally dawned on the state that it had made a serious mistake. The trial court, noting that the defendant had obviously known the true date all along, allowed the state, over the strenuous objection of the defendant, to amend its information and bill of particulars. In essence, the state was allowed to allege one date in an information and bill of particulars, and then, after proving a different date, was allowed to amend the date to conform to the evidence. And the defendant, having in essence already advised six jurors that his only defense would be the state’s inability to prove the date specified, was sent back out to face those same six jurors, his “defense” now obviously in shreds. The natural result was that he was convicted.

Now, it may be quite true that the defendant deserves conviction since the state proved its case and the defendant is not here claiming that the evidence was insufficient. But, the process by which the state secures a conviction must be fair, and in my view allowing the state to proceed on an amended information and bill of particulars in this case was totally unfair. The law is absolutely clear that a defendant is entitled to an acquittal if the state fails to prove the date of the offense set out in a bill of particulars. State v. Beamon, supra. The jury is given a specific legal instruction on this point. See Florida Standard Jury Instructions in Criminal Cases, Second Edition, General Instruction 2.09. However, after such an acquittal the state is free to retry the defendant on an information alleging the correct date. State v. Beamon, supra.

In Hoffman v. State, supra, it was held that the state may be permitted to amend the information and bill of particulars, if the state can affirmatively demonstrate that the defense would not be prejudiced thereby. Factually, in Hoffman, the mistake as to the date was only one day, the state sought to amend before evidence was presented, and it was demonstrated that the defendant had not predicated his defense on the mistake. That picture is a far cry from the one presented here where the mistake as to the date was substantial, the state had put on virtually all of its evidence (as to the date) and the defendant relied on the state’s mistake for his sole defense, as he was entitled to do under Beamon, supra. I cannot imagine any greater prejudice than forcing the defendant to go back out and face the same jury stripped of the only defense he has claimed at trial. I would reverse, not to direct appellant’s acquittal, but rather to order that there be a new, and fair, trial before a new jury. 
      
      . In support of this conclusion, the Supreme Court cited our prior decision in Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972), stating “Howlett and now Hoffman hold that a statement of particulars can be amended if such amendment will not prejudice the defend-' ant.” Hoffman v. State, supra. Actually, in Howlett, it was alleged in both the information and the statement of particulars that the crime in question occurred on January 11, 1970, or shortly thereafter, but at trial it was established that the crime had occurred on January 6. However, at no time did the state move to amend either the information or the statement of particulars to reflect the correct date. This court nonetheless upheld Howlett’s conviction reasoning that the defendant suffered no prejudice since his defense was not based upon “alibi nor any other theory in which the time element might have been an important part.” 260 So.2d 880.
     