HOLLIS YATES ODOM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Odom was charged with sexual battery but convicted of lewd, lascivious assault on a child under 14—an offense not alleged in the information. The court affirmed the conviction, finding that Odom waived objection to the lesser-included offense jury instruction through his participation and acquiescence at trial.
The conviction is affirmed. Although the lewd and lascivious assault offense was not properly a lesser and included offense because the age element was not alleged in the information, Odom waived any objection through his participation and acquiescence in the jury charge at trial.
[1] A conviction for an offense not alleged in the accusatory pleading and not a lesser included offense is improper.
[2] A defendant waives the right to complain of a jury charge, even if it constitutes fundamental error, by participating in and acquiescing to the charge at trial.
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Join FLexlaw to unlock all legal intelligence“Although the child victim was in fact under 14 years of age, as shown by the evidence, that was not alleged in the information. The offense of which appellant was convicted was therefore not a class four lesser and included offense, the elements of which were shown by the accusatory pleading and the proof, and it was not otherwise a lesser and included offense of the offense charged.”
Establishes that the conviction was technically for an offense not properly charged because the age element was missing from the information.
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Join FLexlaw to unlock all legal intelligenceOdom was charged with sexual battery on a person over 11 without consent when the victim was physically helpless. The victim was in fact under 14 year…
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ROBERT P. SMITH, Jr., Judge.
Odom, charged with the offense of sexual battery upon a person over the age of 11 years, without that person’s consent and when the victim was physically helpless to resist, Section 794.011(4)(a), Florida Statutes (1977), was convicted of having committed a lewd, lascivious or indecent assault on a child under the age of 14 years, Section 800.04, Florida Statutes (1977). Although the child victim was in fact under 14 years of age, as shown by the evidence, that was not alleged in the information. The offense of which appellant was convicted was therefore not a class four lesser and included offense, the elements of which were shown by the accusatory pleading and the proof, and it was not otherwise a lesser and included offense of the offense charged. Brown v. State, 206 So. 2d 377 (Fla.1968). On appeal appellant now contends he was convicted for an offense not charged, and he requests that the conviction be reduced to one of battery. We affirm.
Without objection by either the State or appellant, the trial court charged the jury on the “lesser and included” offense of which appellant was later convicted. The charge conference transcript, if any, is not before us, so we do not know who requested the charge now objected to; nor are the final arguments to the jury, so we do not know whether defense counsel sought benefit from the charge. Defense counsel’s participation and acquiescence in the charge as given is shown, however, by the transcript reference to an unreported sidebar conference between the court and counsel immediately before the court recharged the jury on that offense, as requested by the jury; by the court’s recorded question to defense counsel immediately thereafter, “Do you want this one on battery?”, to which counsel replied “Yes”; and by appellant’s motion for new trial which recited preliminarily, not by way of objection,
[Appellant] was convicted of committing a Lewd and Lascivious Assault upon a minor child, which was a lesser included offense under the Information.
Appellant made no objection to the charge in any post-trial motion to the trial court.
In these circumstances we consider that the charge now objected to was given with the participation and acquiescence of appellant, that it is unnecessary to reconstruct the trial court record further, and that appellant has waived or is estopped to complain of the asserted fundamental error. See McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971); Ray v. State, 374 So. 2d 1002, (Fla. 2d DCA 1979).
AFFIRMED.
MILLS, C. J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…on a crime not charged does not necessarily constitute reversible error. Achin v. State, 387 So. 2d 375 (Fla.4th DCA 1980); Wilson v. State, 383 So. 2d 670 (Fla.5th DCA 1980); Carter v. State, 380 [*961] So. 2d 541 (Fla.5th DCA 1980); Odom v. State, 375 So. 2d 1079 (Fla.1st DCA 1979), cert. denied, 386 So. 2d 640 (Fla.1980); Smith v. State, 375 So. 2d 864 (Fla.3d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980); Ray v. State, 374 So. 2d 1002 (Fla.2d DCA 1979); Lumia v. State, 372 So. 2d 525 (Fla.4th DCA 197…
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Hair v. State, 428 So. 2d 760 (Fla. 3d DCA 1983)…y misconduct which would otherwise have called for corrective action, the withdrawal by defendant of his motion for mistrial, coupled with his stipulation that the trial proceed following removal of one juror, waived appellate review. Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979); Williams v. State, 101 So. 2d 877 (Fla. 1st DCA 1958); see McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971). The jury conduct to which we refer was disclosed during extensive questioning by the trial court. One juror indicate…
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Willard v. State, 386 So. 2d 869 (Fla. 1st DCA 1980)…ate’s reliance on McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971), is misplaced because there counsel for defendant induced the very error complained of on appeal. Such is not the case here. Nor is this a situation such as that in Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979), where defense counsel participated and acquiesced in the [*872] decision to give an erroneous charge to the jury- The record in this case does establish that counsel acquiesced in the court’s ruling, but the record also establi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- RAY v. State, 374 So. 2d 1002 (Fla. 2d DCA 1979)