Opinion
No. 75-867.
August 27, 1976.
Appeal from the Circuit Court, Orange County, Peter M. deManio, J.
Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that the trial court erred in denying defendant's motion for judgment of acquittal as to Count One of the information made after the close of the state's case. In particular, count one of the information charged that the defendant did "unlawfully draw, make, utter, issue and deliver" a worthless check on December 22, 1972 when in fact the check was dated December 23, 1972 thereby denoting the issuance of a post-dated check the uttering of which is not a crime under sec. 832.05(2)(a), Florida Statutes. The state suggests that notwithstanding the allegations contained in the information, the evidence presented did in fact support the uttering of the check in question on December 23, 1972. Such a variance between the allegations and proof was under the circumstances of this case fatal, rendering improper any conviction on that particular charge. Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972). Accordingly, no further reversible error having been made to clearly appear, the judgment and conviction of sentence as to Count One is reversed and the cause remanded for further proceedings consistent herewith.
MAGER, C.J., ALDERMAN, J., and WILLIAMS, W.C., III, Associate Judge, concur.