
    Albert GARDNER, Appellant, v. The STATE of Florida, Appellee.
    No. 98-2427.
    District Court of Appeal of Florida, Third District.
    July 14, 1999.
    Rehearing Denied Sept. 1, 1999.
    
      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Richard L. Polin, Assistant Attorney General, and Christian M. Pressman, Certified Legal Intern, for appellee.
    Before COPE, GREEN and SORONDO, JJ.
   PER CURIAM.

Albert Gardner appeals his conviction and sentence for sale and possession of cocaine. We affirm.

The defendant was charged by information, which alleged that the defendant committed both crimes on August 21, 1997. The defendant entered a plea of not guilty and requested a statement of particulars, pursuant to Florida Rule of Criminal Procedure 3.140(n). The State filed a statement of particulars that stated the date and place of the charged crimes, as well as that the charged crimes were committed at 10:40 p.m. At trial, evidence put on by the State included testimony of the undercover officer and two backup detectives. The defense motion for judgment of acquittal or new trial was denied.

Defendant on appeal contends that, based on the State’s alleged failure to prove that the crimes occurred at 10:40 p.m. as provided in the statement of particulars, defendant should be acquitted on both charges. Although it is true that “allegations of the time of commission of a particular offense must be set forth ‘as definitely as possible’ in an information or indictment,” Howlett v. State, 260 So.2d 878, 880 (Fla. 4th DCA 1972) (quoting Fla. R.Crim. P. 3.140(d)(3)), it is also true that small variances between the time of the alleged offense and that time proved at trial are not harmful error, “except in those rare cases (not here in point) where the exact time enters into the nature or legal existence of the offense.” Horton v. Mayo, 153 Fla. 611, 613-14, 15 So.2d 327, 328 (1943) (citations omitted). The undercover officer who bought cocaine from the defendant, Officer Mohamed, testified that he worked with the backup detectives from about 7:30 p.m. until about midnight on August 21, 1997. Further testimony adduced at trial indicated that the offenses occurred around 10:30 p.m., and one of the backup detectives testified that the interaction between officer and defendant took about fifteen to twenty minutes to transact.

The place, date, and all other material facts of the crimes charged that were specifically requested of the prosecutor were sufficient to apprise the defendant of the particulars of the offenses and to enable him to prepare a defense. Rule 3.140(n), Fla. R.Crim. P. Assuming there was a ten-minute variance in time of offense (10:30 versus 10:40), this discrepancy was immaterial, and no reversible error has been shown. See Fitzgerald v. State, 227 So.2d 45 (Fla. 3d DCA 1969).

In any event, the test for error in such circumstances is whether the defendant is materially prejudiced by the error, that is, where the indictment or information is “so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Fla. R.Crim. P. 3.140(o). The defendant relies on State v. Jefferson, 419 So.2d 330 (Fla.1982), but the facts are distinguishable. In Jefferson the variance was three days, not ten minutes. The State did not move to amend the statement of particulars. The court concluded that the three-day variance between the information and the proof was indeed prejudicial. See id. at 332; see also Hutchinson v. State, 453 So.2d 900, 902 (Fla. 4th DCA 1984)(judgment reversed where evidence at trial indicated offense occurred on a date more than one day outside that alleged in the statement of particulars, and State did not seek to amend the statement). Although the Jefferson court did not address Rule 3.140(o), the terms of the rule must of course be considered.

In the present case the State’s proof of the time of the offenses did not vary materially from the statement of particulars, and the defendant did not show that he suffered any prejudice because of the variance in time.

Affirmed.

COPE and GREEN, JJ., concur.

SORONDO, J., concurs.

SORONDO, J.,

(concurring).

I fully agree with the majority opinion. I write separately to expand on the elements of this case which establish clearly that the defendant was in no way prejudiced by the de minimis discrepancy between the time listed in the state’s statement of particulars and the evidence presented at trial.

Florida Rule of Criminal Procedure 3.140(n), reads as follows:

The court] on motion, shall order the prosecuting attorney to furnish a statement of particulars when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense. The statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.

(Emphasis added). In this case, the defendant did not file a motion for statement of particulars making specific requests. Instead, he filed a boilerplate pleading entitled, “Written Plea of Not Guilty and Demand for Jury Trial, Bill of Particulars, and Notice of Discovery.” The pleading reads, in pertinent part, as follows: It seems dear that such a “demand,” making no specific request for information, sought nothing more than the date and place addressed by the rule. Beyond date and place, the prosecutor would be required to supply only “all other material facts of the crime charged that are specifically requested ...Fla. R.Crim. P. 3.140(n)(emphasis added). It is therefore important to understand from the outset that the defendant never requested the specific time at which the offense he was charged with occurred. Because he did not ask for the specific time, it must be presumed that the charging document was sufficiently clear on this issue to allow the defendant to prepare his defense. As the trial transcript clearly demonstrates, the state’s ten minute discrepancy was totally irrelevant to the defendant’s defense. Nevertheless, although not requested by the defendant and not required by the rule, the state supplied a specific time at which the offense had occurred — 10:40 p.m.

Defendant ... hereby pleads not guilty to the charges, demands trial by jury and demands that the [State] do the following acts:
1. File a written Bill of Particulars pursuant to Florida Rules of Criminal Procedures, Rule 3.140(n).

At trial, one police officer testified that the drug transaction at issue occurred between 8:00 p.m. and midnight, and a second officer testified that it occurred at “approximately” 10:30 p.m. At the conclusion of the state’s case the defendant moved for a judgment of acquittal arguing that neither officer’s testimony established the time of the offense as 10:40 p.m. and, consequently, “... no reasonable juror could find [the defendant] guilty based on the evidence presented in the way the case was charged in the bill of particulars.” No allegation of prejudice was made. The motion was denied.

In summation, defense counsel argued that the investigation conducted by the police was extremely sloppy and the evidence far too sketchy to satisfy the state’s heavy burden of proving the charges beyond a reasonable doubt. He chastised the state for not having the transaction video or audio recorded, for not having the defendant’s fingerprints on the contraband and for what he argued were significant inconsistencies in the officers’ testimony. Summarizing his position at the conclusion of his closing argument defense counsel said to the jury:

There is too much lack of evidence and there is too much conflict in the evidence and this much stuff just doesn’t add up and make sense. Thank you.

In light of the defense asserted by the defendant, it is clear that the ten minute discrepancy between the time alleged in the state’s bill of particulars and the evidence adduced at trial was totally insignificant and did not prejudice the defendant in any way. 
      
      . The first trial ended in mistrial, and it is the second trial that concerns us here.
     
      
      . I note that although a defendant has the absolute right to "demand” trial by jury, see Art. 1, § 16(a), Fla. Const.; U.S. Const, amend. VI, he has absolutely no right to "demand” a bill of particulars. The rule clearly indicates that a statement of particulars shall be ordered only upon motion and when the charging document "fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense.” Fla. R.Crim. P. 3.140(n). The rule therefore contemplates the filing of a motion and a judicial determination of need due to a lack of specificity in the charging document. See Winslow v. State, 45 So.2d 339, 340 (Fla.1949).
     
      
      . Although the police attempted to video and audio record the events, the video camera shut down and the audio recording was inaudible.
     
      
      . This was the only assignment of error in what the record reveals to have been an immaculately fair trial.
     