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Taylor v. State

Florida Court of Appeals, Second District

May 26, 2017

ULYSSES TAYLOR, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Highlands County; Anthony Ritenour, Acting Circuit Judge.

          Howard L. Dimmig, II, Public Defender, and Caroline Joan S. Picart, Special Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.

          CASANUEVA, Judge.

         Ulysses Taylor appeals the judgments and sentences imposed following a jury verdict finding him guilty of battery on a law enforcement officer and resisting officers with violence. Mr. Taylor asserts seven claims of error by the trial court. After review, we find no reversible error and affirm. We write to discuss the issues created by the State's request to amend the charging information after it announced that it had rested its case.

         The information filed by the State to institute its prosecution alleged in the battery count that the officer struck was Officer Garza. The allegation was incorrect; the record from the outset indicates that the correct officer to identify as the alleged victim was Officer Tomblin. It is within this context that the claim of error is addressed.

         Following a traffic infraction occurring on August 16, 2014, two officers, Garza and Tomblin, came into contact with Mr. Taylor. The situation deteriorated and the officers sought to arrest Mr. Taylor, resulting in a struggle. Consistent with earlier reports, Officer Tomblin testified at trial that Mr. Taylor struck him intentionally during the struggle. He testified that he was struck by a closed fist in the area of his chin and lip. In response, he delivered three knee strikes.

         Officer Garza testified at trial regarding the same incident. He testified that he did not see Officer Tomblin being struck by Mr. Taylor. Further, he testified that Mr. Taylor did not strike him.

         After the State rested, counsel for Mr. Taylor moved for a judgment of acquittal asserting correctly that the State had failed to prove that Mr. Taylor had battered Officer Garza. In fact, the evidence brought forth by the State established that Mr. Taylor had not struck or hit the officer. In response, the State asked the court for leave to reopen its case for the purpose of amending the identity of the victim alleged in the battery count from Officer Garza to Officer Tomblin. Over objection by the defense, the trial court granted the State's motion.

         To complete the full picture occurring at trial, two other matters are clearly demonstrated by the record before this court. First, the correct identity of the victim was known from the inception of the case. The trial court noted that the arrest report, depositions, and a photo of the injury all correctly identified Officer Tomblin as the officer alleged to have been battered. Second, we note that the defendant offered a witness at trial who testified as to the events surrounding the arrest and, critically, that any touching of the officer was accidental and not intentional. The defense witness claimed that it was Officer Tomblin who had been struck inadvertently.

         Florida Rule of Criminal Procedure 3.140(a)(2) provides that, in circuit court, prosecutions shall be made by indictment or information. Here, the State elected to bring charges by information. Each count of the information "shall allege the essential facts constituting the offense charged." Fla. R. Crim. P. 3.140(d)(1). One of the essential facts is the identity of the victim. Holborough v. State, 103 So.3d 221, 223 (Fla. 4th DCA 2012) ("It is well established in Florida law that for crimes against persons, the name of the person victimized is an essential element of the crime that the State must prove beyond a reasonable doubt in a criminal prosecution."). Subsection (o) of the rule provides, in pertinent part, that no information or count is to be dismissed or judgment arrested because of a defect unless the information is so vague or indistinct as to mislead the accused in the preparation of a defense.

         In State v. Anderson, 537 So.2d 1373, 1375 (Fla. 1989), the supreme court discussed the procedure to be followed when addressing a proposed amendment to an information. Quoting from Lackos v. State, 339 So.2d 217, 219 (Fla. 1976), the court noted:

The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the ...

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