FREDERICK MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DAUKSCH, Judge.
This is an appeal from a conviction and sentence in a drug case. Appellant was charged with unlawful sale of cocaine. The trial judge instructed the jury regarding unlawful delivery of cocaine, rather than sale, and the jury returned a verdict of guilty “as charged.” Either the information and the verdict do not correlate with the jury instructions; or, the information does not correlate with the jury instructions and the verdict.
A jury is entitled to proper instructions on the law from the judge. A verdict which finds a person guilty of a crime with which the accused was not charged is a nullity. Alternatively, a verdict which is not in conformance with the jury instructions is defective. Either way this appellant was wrongfully convicted. We must reverse that conviction and remand the case for a new trial with proper jury instructions and verdict forms. The errors in the sentences for this crime and the probation violation are also matters which must be addressed anew below, so those sentences are reversed, as well.
REVERSED and REMANDED.
UPCHURCH, C.J., and SHARP, J., concur.
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Cited By (11 total)
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Gaines v. State, 652 So. 2d 458 (Fla. 4th DCA 1995)…utes (1991). Appellant did not object to the instructions given. Where instructions for a different crime from that with which a defendant is charged and convicted are read to the jury, the verdict as to that crime is a nullity. See Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986). The error is clearly fundamental and requires reversal. We do not agree with the state’s assertion that the failure to give an instruction defining assault was harmless error and would not have been helpful since the appellant’…
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Bethea v. State, 767 So. 2d 630 (Fla. 5th DCA 2000)…fficient proof of ineffective assistance of counsel. See Oehling v. State, 659 So. 2d 1226, 1227 (Fla. 5th DCA 1995). Although that is not the case here, the case is substantially similar enough to require an evidentiary hearing. See Moore v. State, 496 So. 2d 255, 256 (Fla. 5th DCA 1986)(holding that verdict which is not in conformance with the jury instructions was defective); see also Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992)(holding that trial court committed per se reversible error when it omitt…
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Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990)…to the instructions agreed to by the court, it is clear that the omission was an oversight. A verdict that is not in conformance with the jury instructions is clearly defective. Robertson v. State, 532 So. 2d 90 (Fla. 4th DCA 1988); Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986). Therefore, the judgment and sentence as to count I of information number 88-5940 is reversed with instructions to either afford the defendant a new trial or, with the concurrence of the state, to reduce the conviction to robber…
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