Summary
In State v. DeBianchi, 538 So.2d 984 (Fla. 4th DCA 1989), however, this court did uphold an order dismissing an indictment charging nine counts of sexual battery. The brief opinion in that appeal simply repeated the language of rule 3.140(o) quoted above and added that our affirmance was without prejudice to the right of the state to obtain a new indictment upon more certain time periods.
Summary of this case from State v. Dell'orfanoOpinion
No. 87-2935.
March 1, 1989.
Appeal from the Circuit Court for Broward County; Leroy H. Moe, Judge.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard G. Lubin of Lubin and Minchberg, P.A., West Palm Beach, for appellee.
We affirm dismissal of the indictment charging appellee with nine counts of capital sexual battery, finding that it is so vague, indistinct and indefinite as to mislead appellee and embarrass him in the preparation of his defense and to expose him to the possibility of a second prosecution for the same offense.
Our affirmance is without prejudice to the state, unless otherwise prevented from doing so, to obtain a new indictment based upon more certain time periods for commission of the various offenses.
AFFIRMED.
HERSEY, C.J., and GUNTHER, J., concur.
ANSTEAD, J., concurs specially with opinion.
I agree that the trial court's action was within the discretion outlined in Knight v. State, 506 So.2d 1182 (Fla. 5th DCA 1987) and State v. Garcia, 511 So.2d 714 (Fla. 2d DCA 1987).