Summary
In Ricks v. State, 224 So.2d 413, 414 (Fla.App. 1969), the court, in a per curiam decision, found no merit in the defendant's claim of a material variance in the information where he was charged with assault with a deadly Weapon, a brick, and the proof tended to show the assault was committed with a rock.
Summary of this case from State v. KillengerOpinion
No. 69-120.
July 1, 1969.
Appeal from the Criminal Court of Record, Dade County, Carling Stedman, J.
Robert L. Koeppel, Public Defender, and Gregory B. Hoppenstand, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and SWANN, JJ.
As to appellant's first point on appeal regarding whether sufficient evidence existed to support the trial court's finding that the assault appellant was convicted for was committed with a deadly weapon, this question is one for the trier of fact. Blitch v. State, Fla.App. 1967, 194 So.2d 1. As to appellant's second point on appeal, that the proof adduced at trial was materially at variance with the information by virtue of the fact that the information charged the appellant with assaulting his victim by use of a brick, whereas proof at trial tended to show that the assault was committed with a rock, we find this contention to be without merit.
Affirmed.