procedure the trial judge denied the motion and then deny these state subsequent motions who are we consideration in denying the motion the court case in florida the defendant was charged with two counts of delivery of cocaine but one count of heroin and then the trial during rebuttal argument the state was allowed to amend the charging instrument to reflect that while three substances were in fact changed based upon the evidence presented the court relied to the florence court said that that this is a similar situation except we haven't actually gone to trial we're still have the glow plymouth every stages if you will and we're stuck with the representation that the substance the identity of the victim was permissible joe his did not hold that identification need not be included might say that espinosa was a case in which the state refused to identify the victim of the but the point being that this mother was it doesn't change anything about your homes as far as the remaining arguments i think we can stand on our brief as far as the fact defense appellate counsel and i was his trial counsel as well i want to tell you just some of the basic facts that were outlined by mr otto the defendant was charged by information  january nd in which it indicated there were four packages submitted that only state police lab in two of those packages were tested in those two packages tested positive for the presence of and all denied and his was exonerated where this is you know i think that this case should be decided on jurisdiction as a council and i agree the source of authority for jurisdiction is supreme court rule six  any of the other three apply to really proceeding on that one ground and what that really comes down to is is this in order a substantive effect of which results in dismissal for failure to state a claim i suggest there are three reasons why it's not the st reason is that the court's order denying the state's motion to amend the indictment did not change the the indictment was the same before the court's order it was the same after the court's order well to let the let me ask question isn't that true every time a court suppresses evidence one nays on a motion whether the state can prove it is another matter you know talk about what the state could have done after i have a couple more points here second this is not an order the substantive statute ask for an additional sixty days with good cause which they could have done on march th instead of filing a motion to amend the indictment but they didn't do that so that's really where they're where they're their problem lies it's not in the denial of this motion that they never reignited well ok what think that the grand jury would have indicted but i will say the grand jury was presented with absolutely zero evidence of the ship i mean it's usually been now that word was never mentioned in the grand jury  case the court found so what happened there was three charges two that were charged with delivery of heroin in one or excuse me two were charged were delivery of cocaine it's correct i think that the state would like it character i stand way because i say it that way i'm we're saying that there is a charge of possession then we're just substituting in the substance but i would suggest that the bats courts in the trouts court both found that the actual substance alleged was in essential elements of the offense and had to be alleged in order to meet the requirements of one hundred and eleven dash three pleading requirement lesser penalty the defendant was convicted on that charge and appealed it and the court said that so long as the state chose to proceed by a grand jury indictment it was obliged to return to the grand jury to chang slighter changed and in this case in in so and that wasn't even allowed even though it came with a lesser in this case cocaine and fentanyl are the same  i believe benson trout are probably more informative because they actually deal with substance while jones and coleman you know with whether we need to name the victim as a central the trial case was actually a motion to amend the information that was not agree injury ace but a preliminary hearing case in the initial information which was verified by the prosecutor alleged the possession motion over the objection of the defense but it stayed but as the court reversed the reason being that the information was not verified again by the prosecutor after the men  a murder case where after the fact it was added he choked her end or used a pillow and or used a blanket and or used this or that i believe that the parties believed at that level of detail was necessary in the charging instrument i don't think that's what we have here and with the jones case as well that had to do with whether we need to name a person in an indictment  case actually ruled that we did it they just did it on very short notice and that was the objection the state was allowed to change the victim's name on the day of trial we don't have that here were asking that i mean you were saying that they shouldn't be allowed to change it at all and i think that that's within the court's discretion mr rado but he answered correctly even though he asked for some more time i think it was