IN THE TENTH JUDICIAL CIRCUIT
COURT FOR HARDEE, HIGHLANDS,
AND POLK COUNTY, FLORIDA

Case No. MM00-02628A-XX

Appeal No.: CC-31

KATRINA JONES,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

Appellant was charged by information with disorderly conduct and resisting an officer without violence on May 8, 2000. Appellant waived jury trial and the Honorable Stephen Selph tried appellant on June 29, 2000. At trial the state presented evidence that the appellant yelled at the police while the officers were arresting her sister for stalking. Defense counsel argued that the appellant was exercising her First Amendment right to free speech, and for that reason, she could not be convicted of disorderly conduct. Counsel also presented relevant case law. The court agreed and granted the motion for judgment of acquittal on the disorderly conduct charge.

Defense counsel also argued that since the arrest was not valid, because the appellant was exercising her right to free speech, then she could not be found guilty of the charge of resisting arrest without violence. Counsel presented case law to the judge; however, he rejected that argument and

found that the appellant resisted arrest by trying to twist out of the handcuffs when a >female= officer was attempting to handcuff her.

Defense counsel again moved for a judgment of acquittal because, he argued, the information alleged that the appellant Adid resist, obstruct, or oppose Deputy Sheriff Colson,@; however, the facts adduced during the trial indicated that the appellant had resisted a different officer than the one listed in the charging document. Defense Counsel argued that there was no evidence whatsoever that the appellant resisted the officer charged in the information and for that reason, appellant was entitled to an acquittal. The judge disagreed, and found the appellant guilty of resisting without violence and sentenced her to one year probation with several conditions including anger management.

Appellant raises two issues on appeal, only one which warrants review. The Appellant argues on appeal that the trial court denied the appellant due process of law by denying her motion for judgment of acquittal of the charge of resisting Officer Colson when the state proved instead that the appellant resisted another unnamed officer. Appellee contends that it would not have been proper to dismiss the information even though there was a defect in the charging document, citing to Florida Rule of Criminal Procedure 3.140(0).

In this case, the state charged the appellant with two counts; one of which was that she resisted, without violence, Deputy Sheriff Colson, a male officer of the Polk County Sheriff=s Office contrary to Florida Statute 843.02. (R-4) However, the only evidence offered by the state, was that the appellant resisted the arrest of a female officer, who was not named in the information. The appellant was convicted of resisting that officer without violence. According to both the appellant and appellee, there was no evidence whatsoever that the appellant resisted the officer charged in the information. An accused is to be tried only on the charge in the charging instrument and the proof at trial must conform to that charge. Rose v. State, 507 So2d 630 (Fla. 5^th DCA 1987). However, the variances in this case led to the conviction of the appellant for a crime other than the one charged in the information and leaves her subject to the danger of further prosecution. Green v. State, 714 So.2d 594, 595 (Fla. 2d DCA 1998); Jacob v. State, 651 So.2d 147 (Fla. 2d DCA 1995). A Amaterial variance between the name alleged, and that proved, is fatal . . .@. Raulerson v. State, 358 So.2d 826, 830 (Fla. 1978), cert. denied, 439 U.S. 959 (1978).

Accordingly, it is ORDERED that the sentence is REVERSED and this cause REMANDED to the trial court to discharge the appellant.

ORDERED December 2001.

Charles B. Curry, Chief Judge