Simbert v. State

4 Citing cases

  1. Thach v. State

    342 So. 3d 620 (Fla. 2022)   Cited 8 times
    Holding that the State can amend the information during trial unless the defendant makes an individualized showing of prejudice to his substantial rights

    For the reasons explained below, we hold that any such amendments should be assessed on a case-by-case basis to determine, based on the totality of the circumstances, if they prejudice the substantial rights of the defendant. Consistent with our holding, we approve the First District Court of Appeal's decision in Thach v. State , 304 So. 3d 387, 388 (Fla. 1st DCA 2020), and disapprove the Fourth District Court of Appeal's decisions in Viladoine v. State , 268 So. 3d 804 (Fla. 4th DCA 2019), and Simbert v. State , 226 So. 3d 883 (Fla. 4th DCA 2017), to the extent that they apply a per se prejudice rule to midtrial amendments. We have jurisdiction.

  2. Viladoine v. State

    268 So. 3d 804 (Fla. Dist. Ct. App. 2019)   Cited 2 times

    The court found no prejudice to the defendant because his defense was alibi. This case is controlled by Diaz v. State , 38 So.3d 791 (Fla. 4th DCA 2010), and Simbert v. State , 226 So.3d 883 (Fla. 4th DCA 2017), sexual assault cases where convictions were reversed because the mode of unlawful contact with the victim, as alleged in the information, was changed mid-trial. In Diaz , a defendant was charged with sexual battery "by inserting his fingers into the victim's vagina."

  3. Bankston v. State

    338 So. 3d 252 (Fla. Dist. Ct. App. 2021)   Cited 1 times

    "A trial court's ruling allowing the state to amend the information is reviewed for abuse of discretion." Simbert v. State , 226 So. 3d 883, 885 (Fla. 4th DCA 2017) (citation omitted). Here, during jury selection, the trial court permitted the state, over defense counsel's objection, to amend the information's Count II by changing the mode of sexual battery charged from defendant "causing his mouth and/or tongue to penetrate or unite with the [victim's] vagina " to "causing [his] penis to penetrate or unite with the [victim's] anus ."

  4. Thach v. State

    304 So. 3d 387 (Fla. Dist. Ct. App. 2020)   Cited 1 times

    SeeState v. Green , 149 So. 3d 1146, 1148 (Fla. 2d DCA 2014) (explaining that only a necessarily lesser included offense of the charged offense may be the subject of an "acquittal down"). As was the case in Viladoine v. State , 268 So. 3d 804 (Fla. 4th DCA 2019), Simbert v. State , 226 So. 3d 883 (Fla. 4th DCA 2017), and Diaz v. State , 38 So. 3d 791 (Fla. 4th DCA 2010), the oral amendments to counts 1, 2, 12, and 13 altered the elements of the crime charged and thus were per se prejudicial. Indeed, before the oral amendment was sought, the State had conceded a judgment of acquittal was warranted as to counts 1 and 2 and that insufficient proof had been offered as to counts 12 and 13, as alleged.