IN THE INTEREST OF E.W., A CHILD
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The Fourth District Court of Appeal reversed a defendant's grand theft conviction because the charging document failed to allege the value of stolen property as an essential element, and the defendant was not given adequate notice before being convicted of the lesser included offense of grand theft.
A defendant may not be convicted of a permissive lesser included offense when the charging document is silent as to an essential element of that offense absent waiver, affirmative conduct, or other exceptional circumstance. The defendant did not waive the error by failing to object, and the error was fundamental and subject to review. The conviction is reversed and the case is remanded for entry of a judgment of petit theft.
[1] A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver…
[2] The value of stolen property is an essential element that distinguishes grand theft from petit theft.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstance.”
Establishes the core legal principle that protects defendants from surprise convictions on lesser included offenses not alleged in the charging document.
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Join FLexlaw to unlock all legal intelligenceThe information charged appellant with robbery but made no reference to the value of the victim's stolen property. The trial court found the appellant…
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STONE, Judge.
Appellant’s grand theft conviction is reversed.
The information, charging robbery, made no reference to the value of the victim’s stolen property. The trial court found Appellant not guilty of robbery as charged, but guilty of “theft.” Upon taking further evidence on the issue of the value of the property, the court found Appellant guilty of theft of a necklace worth over $300.00. The first time Appellant was placed on notice that value was an essential issue in the trial was after the court announced that he was not guilty of robbery.
A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstance. E.g., J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988); In re C.T., 582 So. 2d 1245 (Fla. 4th DCA 1991). The State, however, asserts that Appellant had the opportunity to object to the court’s considering the degree of the theft but did not do so, thereby failing to preserve any error. See Ray v. State, 403 So. 2d 956 (Fla.1981). The State also argues that such an error was not fundamental and is therefore not subject to review. Id.
On our review of the record, we cannot conclude that Appellant waived the error by not objecting after the court announced that it wanted to take additional evidence on the issue of value. Although counsel could have been of more assistance to the court, this is not a circumstance where the defense has played a significant role in the trial court’s erroneous ruling, failed to object to an erroneous jury instruction, or applied a strategy that might have inured to the defendant’s benefit. At no time did Appellant consent to being tried for grand theft nor was the error invited. See Falstreau v. State, 326 So. 2d 194 (Fla. 4th DCA 1976), called into doubt by Carter v. State, 380 So. 2d 541 (Fla. 5th DCA 1980); Gordon v. State, 603 So. 2d 512 (Fla. 1st DCA 1992). The prejudice in this case is obvious. See also, Meenaghan v. State, 601 So. 2d 307 (Fla. 4th DCA 1992).
The judgment and sentence are reversed and remanded for entry of an amended judgment of petit theft. There is no need to address the other issue raised on appeal.
GUNTHER, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Pierce v. State, 641 So. 2d 439 (Fla. 4th DCA 1994)…uding the word “money” — taken by the robbery, it failed to state the amount of the cash or, indeed, ascribe any value to anything taken. There is simply nothing in this information that makes clear any values. As we said in In the Interest of E.W., 616 So. 2d 1194 (Fla. 4th DCA 1993), where we followed J.C.B.: “A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or othe…
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Pereira v. State, 29 So. 3d 1186 (Fla. 5th DCA 2010)…uding the word “money” — taken by the robbery, it failed to state the amount of the cash or, indeed, ascribe any value to anything taken. There is simply nothing in this information that makes clear any values. As we said in In the Interest of E.W., 616 So. 2d 1194 (Fla. 4th DCA 1993), where we followed J.C.B.: “A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or othe…
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Woodall v. State, 94 So. 3d 666 (Fla. 5th DCA 2012)…ear element. “A defendant may not be convicted of a permissive lesser-included offense where the charging document is silent as to an essential element of that offense.” Pereira v. State, 29 So. 3d 1186, 1188 (Fla. 5th DCA 2010) (quoting In re E.W., 616 So. 2d 1194, 1194 (Fla. 4th DCA 1993)). The creation of a well-founded fear in the victim of an assault is an essential element of the crime of assault. See Coissy v. State, 957 So. 2d 53, 55 (Fla. 4th DCA 2007). Here, the State correctly concedes error as to…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Allen v. State, 380 So. 2d 541 (Fla. 5th DCA 1980)
- In the Interest of J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987)
- Falstreau v. State, 326 So. 2d 194 (Fla. 4th DCA 1976)
- Patrick v. Brown, 603 So. 2d 512 (Fla. 3d DCA 1992)
- In the Interest of C.T., 582 So. 2d 1245 (Fla. 4th DCA 1991)
- Meenaghan v. State, 601 So. 2d 307 (Fla. 4th DCA 1992)