        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              ROLAND LONG,
                                Appellant,

                                     v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D14-4476

                              [May 25, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Sherwood Bauer Jr., Judge; L.T. Case No.
472013CF000969-B.

   Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   Appellant    was     convicted    of  conspiracy     to    manufacture
methamphetamine. The criminal information alleged that appellant
conspired to manufacture methamphetamine with “Ray Ray Webb.”
However, during the trial, the only evidence presented of a conspiracy
included specific references to “Ray Ray Hicks,” not “Ray Ray Webb.” We
find that the variance between what was charged in the information and
what was proven at trial was a fatal variance, resulting in fundamental
error. As such, we reverse appellant’s conviction for conspiracy. Because
we find this issue dispositive we do not address the remaining issues
appellant raises.

   At trial, the evidence showed that appellant went to Walmart and
Walgreens and purchased ingredients to manufacture methamphetamine.
An employee trained in identifying materials used in manufacturing
methamphetamine called the police. When the police arrived, they
received consent to search the vehicle in which appellant had been riding
and discovered many items which could be used to make
methamphetamine, though appellant was still missing a few ingredients.
   After appellant was arrested, he waived his Miranda rights and gave a
statement. Appellant admitted he bought Drano crystals for someone he
called “Ray Ray” and admitted Ray Ray needed the crystals to make
methamphetamine. When asked what Ray Ray’s full name was, appellant
said Ray Ray’s name was “Ray Hicks.”

   Appellant claimed the remainder of the items were for common,
household use. However, he was also able to describe, in detail, the
process to make methamphetamine.               The state’s expert on
methamphetamine production noted that appellant had more familiarity
with the methamphetamine manufacturing process “than most of the
people certainly that you meet on a day to day basis.”

   At trial, appellant’s alleged co-conspirator did not testify. In fact, the
police never even attempted to locate Ray Ray. The only evidence as to the
identity of appellant’s co-conspirator was appellant’s own admission. No
explanation for the variance between the name in the information and the
name proven at trial appears in the record. The state did not move to
amend the information either before or during trial, and appellant did not
object to the variance before or during trial.

  Appellant was ultimately convicted of conspiracy to manufacture
methamphetamine. This appeal ensued. 1

   A fundamental defect in a charging document can be raised for the first
time on appeal and is reviewed for fundamental error. Castillo v. State,
929 So. 2d 1180, 1181 (Fla. 4th DCA 2006). “A charging instrument is
fundamentally defective if ‘it is so vague, inconsistent and indefinite as to
mislead the accused and embarrass him in the preparation of his defense
or expose him after conviction or acquittal to substantial danger of a new
prosecution for the same offense.’” Id. (quoting Brown v. State, 184 So.
518, 519-20 (Fla. 1938)). See also Wescott v. State, 72 So. 3d 304, 305
(Fla. 1st DCA 2011) (stating that where a defendant could “in theory” be
prosecuted twice for the same crime, an error in a charging document
cannot be considered harmless).

   Specifically with regard to the variation of names on the criminal
information, “a material variance between the name alleged and that
proved is fatal.” Snipes v. State, 733 So. 2d 1000, 1004 (Fla. 1999).
However, where the variation is immaterial, reversal is unwarranted.

1Appellant was also convicted of attempt to manufacture methamphetamine. He
does not appeal that conviction.

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Grissom v. State, 405 So. 2d 291, 292 (Fla 1st DCA 1981); see also
Raulerson v. State, 358 So. 2d 826, 830 (Fla. 1978) (finding no fatal
variance where the information stated the victim was “Michael” but proof
at trial showed the victim went by the common nickname “Mike”); Snipes,
733 So. 2d at 1005 (stating a typographical error of the victim’s name in
the information did not result in a fatal variance); Corbett v. State, 113 So.
3d 965, 971 (Fla. 2d DCA 2013) (misspelling the victim’s name by one
vowel was not a fatal variance).

    In Jacob v. State, 651 So. 2d 147 (Fla. 2nd DCA 1995), the information
listed the victim as “James Neeley” but the evidence at trial indicated the
victim was named “Joseph Neeley.” Significantly, none of the state’s
witnesses knew the victim, nor did the victim testify. The court concluded
that the defendant was at risk of being “convicted twice for the same
offenses.” Id. at 148. Thus, even though no objection was raised at trial,
the court found fundamental error and reversed the defendant’s
conviction. See also Jacobs v. State, 35 So. 65, 65 (Fla. 1903) (reversing a
conviction, where the information stated the victim was “Rosa Lee Nelson”
but the victim identified herself as “Rosa Lee Ann,” because “[t]he name of
the person assaulted, as alleged in the indictment, was an essential
element in the legal description of the offense” and because there was no
evidence showing the victim was known by both names).

   On the other hand, in Brown v. State, 888 So. 2d 130 (Fla. 4th DCA
2004), the information stated the victim was named “Kevin Pope” but the
evidence at trial showed the victim’s name was “Keith Pope.” Critically,
the victim himself testified at trial. Thus, there could be no confusion as
to who the true victim was. The defendant was able to put on a “full
defense” and there was no danger of a second prosecution as “there could
be no doubt as to the true identity of the victim.” Id. at 131.

    The record in the instant case does not support a finding that appellant
was prejudiced by the variance. The critical evidence in appellant’s
prosecution for conspiracy was his own admission that he had been
acquiring materials for Ray Ray to make methamphetamine. The variance
does not appear to have prevented him from putting on a “full defense.”
Id.

   However, we find that the variance does expose appellant to the danger
of a second prosecution for the same offense. The information on which
appellant’s conviction was based listed appellant’s co-conspirator as “Ray
Ray Webb,” but the only evidence at trial was for a conspiracy with “Ray
Ray Hicks.” The alleged co-conspirator did not testify and none of the
witnesses who did testify personally knew either a “Ray Ray Webb” or a

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“Ray Ray Hicks.” Furthermore, no evidence in the record indicates Ray
Ray Webb is the same person as Ray Ray Hicks. See Jacobs, 35 So. at 65.
Thus, unlike in Brown, the true identity of appellant’s alleged co-
conspirator remains ambiguous. This ambiguity allows for the possibility
that appellant could be convicted a second time for the same offense. We
conclude therefore, like the Jacob court, that the variance in the
information was fatal.

    Although no objection to this variance was made at trial, the variance
constitutes fundamental error. Jacob, 651 So. 2d at 148. See also
Wescott, 72 So. 3d at 305 (stating fatal variance was not harmless error
because the defendant “could, in theory, twice be convicted of the same
crime”). We, therefore, reverse appellant’s conviction for conspiracy to
manufacture methamphetamine and remand for a new trial. See Jacobs,
35 So. at 65; Smith v. State, 86 So. 640 (Fla. 1920); Lattimore v. State, 202
So. 2d 3, 4 (Fla. 3d DCA 1967); Wescott, 72 So. 3d at 306. See also Brown
v. State, 41 So. 3d 259, 262-63 (Fla. 4th DCA 2010) (reversing for a new
trial where the manner in which the crime was committed differed from
what was charged in the information); Holborough v. State, 103 So. 3d 221,
224 (Fla. 4th DCA 2012) (citing Jacobs and Smith for the proposition that
a new trial was the appropriate remedy where the appellate court reverses
a trial court’s hearsay ruling and where the inadmissible hearsay was the
only evidence of the victim’s identity). On remand, should the state choose
not to prosecute appellant, then the appellant is entitled to resentencing
on his attempt to manufacture methamphetamine conviction.

   Reversed and remanded.

DAMOORGIAN, J., and HANZMAN, MICHAEL A., Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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