fatal variance rule in Georgia

2025However, “our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation and punctuation omitted.) Fortner v. State, 350 Ga. App. 226, 230 (1) ( 828 SE2d 434 ) (2019).4 Here, the “the crime of fleeing and attempting to elude is committed when the officer who is in a police car gives a driver a signal to stop is both in uniform with the badge prominently displayed and the officer’s vehicle is appropriately marked as an 4 The fatal variance rule and requirement of materiality was adopted by the Supreme Court of Georgia in DePal

2025However, “our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation and punctuation omitted.) Fortner v. State, 350 Ga. App. 226, 230 (1) ( 828 SE2d 434 ) (2019).4 Here, the “the crime of fleeing and attempting to elude is committed when the officer who is in a police car gives a driver a signal to stop is both in uniform with the badge prominently displayed and the officer’s vehicle is appropriately marked as an 4 The fatal variance rule and requirement of materiality was adopted by the Supreme Court of Georgia in DePal

1986The only issue remaining here is whether the specification of “repairing” a dental device rather than of manufacturing one is sufficient to constitute a fatal variance between allegata and probata. *552 In Ingram v. State, 137 Ga. App. 412, at 415 ( 224 SE2d 527 ) (1976), this court held: “[T]he present trend ... is away from the overly-technical application of the fatal variance rule. ...

1986The only issue remaining here is whether the specification of “repairing” a dental device rather than of manufacturing one is sufficient to constitute a fatal variance between allegata and probata. *552 In Ingram v. State, 137 Ga. App. 412, at 415 ( 224 SE2d 527 ) (1976), this court held: “[T]he present trend ... is away from the overly-technical application of the fatal variance rule. ...

2023Our courts do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation and punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396 (3) ( 627 SE2d 579 ) (2006). (a) In our view, acceptance of Penix’s argument for a distinction between the use of his fists, which is not mentioned in the indictment, and using his hands to push the jailers would result in an improper and overly technical application of the fatal variance rule.

2023Our courts do not “employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation and punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396 (3) ( 627 SE2d 579 ) (2006). (a) In our view, acceptance of Penix’s argument for a distinction between the use of his fists, which is not mentioned in the indictment, and using his hands to push the jailers would result in an improper and overly technical application of the fatal variance rule.

1978Judge Stolz in that opinion cited Dobbs v. State, 235 Ga. 800 (3) ( 221 SE2d 576 ), and Ingram v. State, 137 Ga. App. 412 (3b) ( 224 SE2d 527 ) which hold our courts should no longer tolerate over-technical applications of the fatal-variance rule.

1978Judge Stolz in that opinion cited Dobbs v. State, 235 Ga. 800 (3) ( 221 SE2d 576 ), and Ingram v. State, 137 Ga. App. 412 (3b) ( 224 SE2d 527 ) which hold our courts should no longer tolerate over-technical applications of the fatal-variance rule.

2026Indeed, not all differences between an indictment and proof “constitute fatal variances.”12 As explained by the Supreme Court of Georgia, our courts “no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.”13 The true inquiry, then, is not “whether there has been a variance in 11 See Faust v. State, 303 Ga. 731, 736 (2) ( 814 SE2d 714 ) (2018) (holding jury was allowed to infer that DeKalb County Officer who responded to scene was acting within the scope of his territorial jurisdiction and, thus, venue was DeKalb County). 12 Maxwell v. Stat

2026Indeed, not all differences between an indictment and proof “constitute fatal variances.”12 As explained by the Supreme Court of Georgia, our courts “no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.”13 The true inquiry, then, is not “whether there has been a variance in 11 See Faust v. State, 303 Ga. 731, 736 (2) ( 814 SE2d 714 ) (2018) (holding jury was allowed to infer that DeKalb County Officer who responded to scene was acting within the scope of his territorial jurisdiction and, thus, venue was DeKalb County). 12 Maxwell v. Stat

2016In any event, “Georgia courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.” Haley v. State, 289 Ga. 515, 529 ( 712 SE2d 838 ) (2011) (citation and punctuation omitted).

2016In any event, “Georgia courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.” Haley v. State, 289 Ga. 515, 529 ( 712 SE2d 838 ) (2011) (citation and punctuation omitted).

2025See generally Holman v. State, 329 Ga. App. 393, 401 (2) (b) (ii) ( 765 SE2d 614 ) (2014) (“averments in an indictment as to the specific manner in which a crime was committed . . . must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law”).

2025See generally Holman v. State, 329 Ga. App. 393, 401 (2) (b) (ii) ( 765 SE2d 614 ) (2014) (“averments in an indictment as to the specific manner in which a crime was committed . . . must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law”).

1988Based on DePalma v. State, 225 Ga. 465, 469 (3) ( 169 SE2d 801 ) (1969), our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. “ ‘The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused.’ ” Shackelford v. State, 179 Ga. App. 595, 596 ( 347 SE2d 346 ) (1986), quoting from Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) (1935).

1978The majority in this case has made an overly-technical application of the fatal variance rule which goes beyond the constitutional standards set forth by the United States Supreme Court in Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314), and which, in my judgment, cannot be justified.

2024As discussed supra, the deputy who responded to the incident testified that Caleb had a red mark near his eye and what 9 Strapp, 326 Ga. App. at 265-66 (1) (b) (punctuation omitted); see Penix, 367 Ga. App. at 767 (1) (a) (explaining in case in which defendant was convicted of battery, “acceptance of [defendant’s] argument for a distinction between the use of his fists, which is not mentioned in the indictment, and using his hands to push the jailers would result in an improper and overly technical application of the fatal variance rule” (punctuation omitted)); Fletcher v. State, 326 Ga. App.

2024As discussed supra, the deputy who responded to the incident testified that Caleb had a red mark near his eye and what 9 Strapp, 326 Ga. App. at 265-66 (1) (b) (punctuation omitted); see Penix, 367 Ga. App. at 767 (1) (a) (explaining in case in which defendant was convicted of battery, “acceptance of [defendant’s] argument for a distinction between the use of his fists, which is not mentioned in the indictment, and using his hands to push the jailers would result in an improper and overly technical application of the fatal variance rule” (punctuation omitted)); Fletcher v. State, 326 Ga. App.

2014“Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage [and] must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” (Citation and punctuation omitted.) Quiroz v. State, 291 Ga.App. 423, 425-426 (1) ( 662 SE2d 235 ) (2008).

2014“Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage [and] must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” (Citation and punctuation omitted.) Quiroz v. State, 291 Ga.App. 423, 425-426 (1) ( 662 SE2d 235 ) (2008).

2020Our courts do not employ an overly technical application of the fatal variance rule, focusing instead on materiality. 9 (Citation and punctuation omitted.) Kay v. State, 306 Ga. App. 666, 669 (3) (703 SE2d 108) (2010).

2020Our courts do not employ an overly technical application of the fatal variance rule, focusing instead on materiality. 9 (Citation and punctuation omitted.) Kay v. State, 306 Ga. App. 666, 669 (3) (703 SE2d 108) (2010).

2004“A variance is not fatal if the accused is definitely informed as to the charges against him and is protected against another prosecution for the same offense for the present trend of case law is away from the overly technical application of the fatal variance rule.” (Citations *107 and punctuation omitted.) Shackelford v. State, 179 Ga. App. 595, 597 ( 347 SE2d 346 ) (1986).

2004“A variance is not fatal if the accused is definitely informed as to the charges against him and is protected against another prosecution for the same offense for the present trend of case law is away from the overly technical application of the fatal variance rule.” (Citations *107 and punctuation omitted.) Shackelford v. State, 179 Ga. App. 595, 597 ( 347 SE2d 346 ) (1986).

1999The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. . . .”’ Denson v. State, 212 Ga. App. 883 (2), 884 ( 443 SE2d 300 ). ‘ “Under DePalma v. State, 225 Ga. 465, 469 ( 169 SE2d 801 ) (1969), and Dobbs v. State, 235 Ga. 800 (3) ( 221 SE2d 576 ) (1976), ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ Givens v. State, 149 Ga. App. 83, 86 ( 253 SE2d 447 ) (1979).

1999The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. . . .”’ Denson v. State, 212 Ga. App. 883 (2), 884 ( 443 SE2d 300 ). ‘ “Under DePalma v. State, 225 Ga. 465, 469 ( 169 SE2d 801 ) (1969), and Dobbs v. State, 235 Ga. 800 (3) ( 221 SE2d 576 ) (1976), ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ Givens v. State, 149 Ga. App. 83, 86 ( 253 SE2d 447 ) (1979).

1981“Since De Palma the trend has been away from overly-technical applications of the fatal variance rule, at least with respect to the description or amount of the stolen property . . .” Caldwell v. State, 139 Ga. App. 279, 282 ( 228 SE2d 219 ) (1976).

1981“Since De Palma the trend has been away from overly-technical applications of the fatal variance rule, at least with respect to the description or amount of the stolen property . . .” Caldwell v. State, 139 Ga. App. 279, 282 ( 228 SE2d 219 ) (1976).

1975In Marchman v. State, 234 Ga. 40, 45 ( 215 SE2d 467 ), the Supreme Court stated, "The motion for rehearing raises questions concerning the fatal variance rule as applied in Marchman v. State, 129 Ga. App. 22 ( 198 SE2d 425 ).

1975In Marchman v. State, 234 Ga. 40, 45 ( 215 SE2d 467 ), the Supreme Court stated, "The motion for rehearing raises questions concerning the fatal variance rule as applied in Marchman v. State, 129 Ga. App. 22 ( 198 SE2d 425 ).

2022See Lebis, 302 Ga. at 759-760 (II) (B) (citing approvingly Davis v. State, 287 Ga. App. 786, 787 (1) ( 653 SE2d 104 ) (2007), a Court of Appeals opinion that rejected a similar fatal variance claim where the trial evidence authorized a finding that the defendant was a party to the crime). 13 (b) The trial court did not err in instructing the jury on party to a crime.

2022See Lebis, 302 Ga. at 759-760 (II) (B) (citing approvingly Davis v. State, 287 Ga. App. 786, 787 (653 SE2d 13 104) (2007), a Court of Appeals opinion that rejected a similar fatal variance claim where the trial evidence authorized a finding that the defendant was a party to the crime). (b) The trial court did not err in instructing the jury on party to a crime.

2025See Lawhorn v. State, 200 Ga. App. 451, 453 (1) ( 408 SE2d 425 ) (1991).

2025See Lawhorn v. State, 200 Ga. App. 451, 453 (1) ( 408 SE2d 425 ) (1991).

2024See Hughes v. State, 310 Ga. 453, 456 (2) n.5 ( 851 SE2d 580 ) (2020); Eberhart v. State, 307 Ga. 254, 262 (2) (a) n.7 ( 835 SE2d 192 ) (2019); Davis v. State, 301 Ga. 397, 402 (4) ( 801 SE2d 897 ) (2017).

2024See Hughes v. State, 310 Ga. 453, 456 (2) n.5 (851 SE2d 580) (2020); Eberhart v. State, 307 Ga. 254, 262 n.7 (2) (a) (835 SE2d 192) (2019); Davis v. State, 301 Ga. 397, 402 (4) (801 SE2d 897) (2017).

2024A sufficiency claim is different in kind from a fatal-variance claim, which “merely is concerned with proof in- troduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence.” See Oglesby v. State, 243 Ga. 690, 692 (3) (256 SE2d 371) (1979) (emphasis added).

2024A sufficiency claim is different in kind from a fatal-variance claim, which “merely is concerned with proof in- troduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence.” See Oglesby v. State, 243 Ga. 690, 692 (3) (256 SE2d 371) (1979) (emphasis added).

2024See also McCrary v. State, 252 Ga. 521, 522, 524 (314 SE2d 662) (1984) (concluding that the evi- dence was constitutionally sufficient to support the conviction for felony mur- der predicated on robbery but reversing that conviction because of a fatal var- iance where the indictment for malice murder did not “fairly put[] the defend- ant on notice” that he would have to defend against a charge of robbery or a felony murder predicated thereon).

2024See also McCrary v. State, 252 Ga. 521, 522, 524 (314 SE2d 662) (1984) (concluding that the evi- dence was constitutionally sufficient to support the conviction for felony mur- der predicated on robbery but reversing that conviction because of a fatal var- iance where the indictment for malice murder did not “fairly put[] the defend- ant on notice” that he would have to defend against a charge of robbery or a felony murder predicated thereon).

2021Accord Brown v. State, 307 Ga. 24, 27 (1) ( 834 SE2d 40 ) (2019) (“Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.

2020See Brown v. State, 307 Ga. 24 , 6 28 (1) ( 834 SE2d 40 ) (2019) (a fatal variance claim asserts that there is “a deviation between the allegations in the indictment and the evidence adduced at trial”).

2020“The true inquiry regarding a fatal variance claim is whether there has been such a variance as to affect the substantial rights of the accused.” Holmes v. State, 291 Ga. App. 196, 199 (2) ( 661 SE2d 603 ) (2008).

2020“The true inquiry regarding a fatal variance claim is whether there has been such a variance as to affect the substantial rights of the accused.” Holmes v. State, 291 Ga. App. 196, 199 (2) ( 661 SE2d 603 ) (2008).

2016In Georgia, “[w]e no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation omitted.) Chambers v. State, 284 Ga. App. 400, 401 (1) ( 643 SE2d 871 ) (2007).

2016In Georgia, “[w]e no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation omitted.) Chambers v. State, 284 Ga. App. 400, 401 (1) ( 643 SE2d 871 ) (2007).

2014It is unquestionable that, in criminal prosecutions, “the court’s instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial.”61 In particular, this is true when the offense charged “may be committed in one 58 Emphasis supplied. 59 Emphasis supplied. 60 Emphasis supplied. 61 Boatright v. State, 308 Ga. App. 266, 272 (1) (e) ( 707 SE2d 158 ) (2011). 30 of several ways, but the indictment charges one specific method.”62 Indeed, “[a]verments in an indictment as to the specific manner in which a crime was committed are not mere surplusage,”63 and “[s]uch av

2014It is unquestionable that, in criminal prosecutions, “the court’s instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial.”61 In particular, this is true when the offense charged “may be committed in one 58 Emphasis supplied. 59 Emphasis supplied. 60 Emphasis supplied. 61 Boatright v. State, 308 Ga. App. 266, 272 (1) (e) ( 707 SE2d 158 ) (2011). 30 of several ways, but the indictment charges one specific method.”62 Indeed, “[a]verments in an indictment as to the specific manner in which a crime was committed are not mere surplusage,”63 and “[s]uch av

2013Haley v. State, 289 Ga. 515, 529 (3) (a) ( 712 SE2d 838 ) (2011) (punctuation omitted); see also White v. State, 323 Ga. App. 660, 662 (2) ( 744 SE2d 857 ) (2013) (“We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.

2013Haley v. State, 289 Ga. 515, 529 (3) (a) ( 712 SE2d 838 ) (2011) (punctuation omitted); see also White v. State, 323 Ga. App. 660, 662 (2) ( 744 SE2d 857 ) (2013) (“We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.

2013See Walker a State, 323 Ga. App. 685, 688 (2) ( 747 SE2d 691 ) (2013) (holding that the fatal-variance claim was waived for failure to raise it below); Palmer v. State, 286 Ga. App. 751, 753-754 (2) ( 650 SE2d 255 ) (2007) (same).

2013See Walker a State, 323 Ga. App. 685, 688 (2) ( 747 SE2d 691 ) (2013) (holding that the fatal-variance claim was waived for failure to raise it below); Palmer v. State, 286 Ga. App. 751, 753-754 (2) ( 650 SE2d 255 ) (2007) (same).

2011(Citations and punctuation omitted.) Taiton v. State, 254 Ga. App. 111, 112 (1) ( 561 SE2d 139 ) (2002).

2011(Citations and punctuation omitted.) Taiton v. State, 254 Ga. App. 111, 112 (1) ( 561 SE2d 139 ) (2002).

2013See Walker a State, 323 Ga. App. 685, 688 (2) ( 747 SE2d 691 ) (2013) (holding that the fatal-variance claim was waived for failure to raise it below); Palmer v. State, 286 Ga. App. 751, 753-754 (2) ( 650 SE2d 255 ) (2007) (same).

2013See Walker a State, 323 Ga. App. 685, 688 (2) ( 747 SE2d 691 ) (2013) (holding that the fatal-variance claim was waived for failure to raise it below); Palmer v. State, 286 Ga. App. 751, 753-754 (2) ( 650 SE2d 255 ) (2007) (same).