Raymond Harold TINGLEY, Petitioner, v. STATE of Florida, Respondent, 549 So. 2d 649

OVERTON, Justice. This is a petition to review Tingley v. State, 495 So.2d 1181 (Fla. 5th DCA 1986), in which the district court held that the state, by a bill of particulars, could change the time period in which an alleged sexual battery occurred to a period prior to the time stated in the indictment. We find conflict with Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927); Dickson v. State, 20 Fla. 800 (1884); Phelan v. State, 448 So.2d 1256 (Fla. 4th DCA 1984); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); and Russell v. State, 349 So.2d 1224 (Fla. 2d DCA 1977). We have jurisdiction.

Art V, § 3(b)(3), Fla. Const. For the reasons expressed „ below, we approve the district court’s decision'. We hold that time is not a substantive part of a charging document and that our present discovery rules eliminate the need for the specificity required by prior case law. The relevant facts reflect that a grand jury indicted Raymond Harold Tingley on four counts of sexual battery of a minor, contrary to the provisions of

section 794.-011(2), Florida Statutes (1983). The indictment charged Tingley with four sexual batteries against two different young girls, and it set forth that the incidents occurred between April 1, 1982, and September 30, 1982. In response to a defense motion for a bill of particulars, the state filed the following responses: (1) the offenses occurred between June 1, 1983, and August 1, 1983; (2) the crimes occurred between April 1, 1982, and September 20, 1982; (3) the crimes occurred between September 1, 1981, and September 20, 1982; and (4) the crimes occurred between September 1, 1981, and March 1, 1982.

The final time period was in response to a later defense motion for a bill of particulars. At trial, the evidence established that the children were originally unclear as to when the incidents occurred, primarily due to their youth and a three-year time lapse between the occurrence of the crimes and the children’s complaints. Trial testimony eventually placed the crimes as occurring in October, November, and December of 1981, within the time frame of the last amendment to the bill of particulars.

Ting-ley was found guilty and sentenced to concurrent life prison terms with a minimum of twenty-five years without parole. On appeal, the Fifth District Court of Appeal affirmed, rejecting Tingley’s contention that the last bill of particulars was an impermissible amendment which voided the indictment. The district court emphasized that Tingley “does not argue that the amendment occurred too close in time to the trial to prevent him from being able to effectively present a defense, or that it delayed, or hampered his defense at trial.” 495 So.2d at 1182.

The district court addressed the argument that time must be specifically alleged in an indictment and the question of whether time was a substantive element of this offense, concluding: The better-reasoned rule appears to us to be that unless time is a specific element of a certain crime, it is not a substantive, essential part of the indictment.

A conviction may be obtained for a crime even though there is a variance between the dates proved at trial and those alleged in the indictment, so long as the indictment and proofs show the crime was committed before the return date of the indictment and within any applicable statute of limitations time period. Tingley, 495 So.2d at 1183 (footnotes omitted) (citing 3 Wharton’s Criminal Procedure § 273 (12th ed. 1975); Hunter v. State, 85 Fla. 91, 95 So. 115 (1923); cf. State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); Straughter v.

State, 83 Fla. 683, 92 So. 569 (1922)). We agree with the district court’s decision. Although time is an important part of a charging document, it is not a substantive element of this offense. It is extremely important to note that, under our present rules, Tingley was afforded a full range of discovery, and thus was neither surprised nor hampered in his defense. A number of jurisdictions hold that time, although it is an important part of an indictment for sexual battery offenses, is not generally considered a substantive part of the charging document. See State v. Palmer, 306 S.W.2d 441 (Mo.1957); Martinez v.

State, 77 Nev. 184, 360 P.2d 836 (1961); State v. Sysinger, 25 S.D. 110, 125 N.W. 879 (1910); Faulkner v. State, 390 S.W.2d 754 (Tex.Crim.App.1965); Lear v. Commonwealth, 195 Va. 187, 77 S.E.2d 424 (1953). Consequently, such a change does not require grand jury action. People v. Crosby, 58 Cal.2d 713, 375 P.2d 839, 25 Cal.Rptr. 847 (1962); State v. Blendt, 49 Del. 528, 120 A.2d 321 (Super.Ct.1956); State v. Mottram, 155 Me. 394, 156 A.2d 383 (1959); Saucier v. State, 95 Miss. 226, 48 So. 840 (1909).

Under this rule, as long as a defendant is neither surprised nor hampered in preparing his defense, there can be a variance between the dates proved at trial and those alleged in an indictment or information. Pursuant to this rule, it must be shown that the crime was committed before the return date of the indictment or information and within the applicable statute of limitations. People v. McGowan, 415 Ill. 375, 114 N.E.2d 407 (1953); State v. Thomas, 177 Kan. 230, 277 P.2d 577 (1954); State v. Hollis, 273 P.2d 459 (Okla.Crim.App.1954). We have previously adopted this rule by implication. See Sparks v.

State, 273 So.2d 74 (Fla.1973); Hunter v. State, 85 Fla. 91, 95 So. 115 (1923). Further, we have held that the exact date of the offense need not be alleged. See Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); Sparks v. State, 273 So.2d 74 (Fla.1973); Hunter v. State, 85 Fla. 91, 95 So. 115 (1923); see also State v. Belton, 468 So.2d 495 (Fla. 5th DCA 1985); State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977). The common law principle expressed in Pickeron v.

State, 94 Fla. 268, 113 So. 707 (1927), and Dickson v. State, 20 Fla. 800 (1884), that times and dates within an indictment or information could not be modified by amendment, was adopted to assure fair notice of the charges under an indictment or information at a time when there was no discovery. Times have changed. As this Court explained in Sparks v. State, 273 So.2d 74 (Fla.1973), our discovery rules have eliminated the necessity for a number of prior common law rules developed to assure a fair trial when no discovery existed.

The fact that Tingley claims neither that he was surprised nor that he was hampered in preparing his defense demonstrates our discovery rules’ effectiveness. Defense counsel took thorough depositions of the victims prior to trial. Tingley merely seeks the benefit of the old rules when the rationale for their existence has been eliminated. As this Court explained in State v. Waters, 436 So.2d 66, 69 (Fla. 1983): The early cases establishing the requirement of detailed specificity in indictments and informations were decided long before this Court adopted broad reciprocal discovery procedures.

Our present discovery rules provide defendants with a much better means for avoiding surprise or embarrassment in the preparation of a defense than just the terms utilized in a charging document. Further, trial courts have the authority to remedy a lack of definiteness by granting a defendant’s motion for a statement of particulars. In

summary, we conclude that time is not ordinarily a substantive part of an indictment or information and there may be a variance between the dates proved at trial and those alleged in the indictment or information as long as: (1) the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither surprised nor hampered in preparing his defense. We approve the decision of the district court of appeal in the instant case. It is so ordered. EHRLICH, C.J., and McDONALD and GRIMES, JJ., concur. KOGAN, J., dissents with an opinion, in which SHAW and BARKETT, JJ., concur.