LARRY RUSSELL GAINES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Russell Gaines was convicted by jury of sexual battery and lewd assault. The appellate court affirmed the sexual battery conviction but reversed the lewd assault conviction because the trial court instructed the jury on the wrong statutory provision, violating the defendant's due process rights.
The court held that when 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 and reversal is required. The error is clearly fundamental. The state's harmless error argument fails because instructing on an unnatural act is not equivalent to instructing on assault, which requires proof of intent to threaten violence, ability to carry out the threat, and well-founded fear.
[1] A jury verdict is a nullity when the trial court reads instructions for a different crime than that with which the defendant is charged and convicted.
[2] Fundamental error requiring reversal occurs when a trial court instructs the jury on the elements of a different crime than that charged.
Previewing 2 of 4 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“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.”
Establishes the fundamental rule that instructing on wrong statutory provision requires reversal of that conviction.
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Join FLexlaw to unlock all legal intelligenceGaines was charged with sexual battery with a firearm and lewd assault. The jury found him guilty of sexual battery (a lesser included offense) and gu…
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PER CURIAM.
Larry Russell Gaines, appellant, was charged by information with sexual battery with a firearm and lewd assault. The jury found appellant guilty of sexual battery (a lesser included offense) and guilty of lewd assault. We affirm the conviction and sentence for sexual battery.
The crime of lewd assault is proscribed by section 800.04(1), Florida Statutes (1991). In its instructions to the jury the trial court, instead of the instructions for lewd assault, read the instruction for an unnatural and lascivious act under section 800.02, Florida Statutes (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’s defense was that the incident never occurred. Once the jury determined that the incident did occur, the issue then became whether the conduct rose to the level of an assault. A finding that a defendant committed an unnatural act is not equivalent to a finding that a defendant assaulted the victim (hence the reason one crime is a misdemeanor and one is a felony). Thus, instructing the jury that the state must merely prove that an “act” occurred is not equivalent to instructing the jury that the state must prove assault, which requires proof of intent to threaten violence, ability to carry out the threat, and well-founded fear. Since the jury was not instructed on the requisite elements of proof, defendant’s due process rights were violated because he was sentenced for a felony when the jury was only asked to decide whether the proof adduced rose to the level required for a misdemeanor. Our resolution of this issue moots the sentencing issue also raised by appellant.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HERSEY, GUNTHER and STEVENSON, JJ., concur.
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D.R. v. State, 790 So. 2d 1242 (Fla. 5th DCA 2001)…oof of one would have sufficed but if one of the state of facts is alleged, it cannot be established by proof of another. Long v. State, 92 So. 2d 259, 260 (Fla. 1957). See also O’Bryan v. State, 692 So. 2d 290 (Fla. 1st DCA 1997); Gaines v. State, 652 So. 2d 458 (Fla. 4th DCA 1995); Morton v. State, 548 So. 2d 788 (Fla. 2d DCA 1989); Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986); c.f Van Gotum v. State, 569 So. 2d 773 (Fla. 2d DCA 1990), rev. denied, 581 So. 2d 1311 (Fla.1991). Zwick v. State, 730 So.…
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Raford v. State, 792 So. 2d 476 (Fla. 4th DCA 2001)…the lesser included offense of third degree child abuse. Appellant argues that he was found guilty of an offense with which he was not charged, an error which is fundamental and can therefore be raised for the first time on appeal. Gaines v. State, 652 So. 2d 458 (Fla. 4th DCA 1995) (“Where instructions for a different crime from that which the defendant is charged and convicted are read to the jury, the verdict as to that crime is a nullity.... The error is clearly fundamental and requires reversal.”); Moor…
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Adams v. State, 681 So. 2d 917 (Fla. 4th DCA 1996)…of resisting arrest with violence. We reverse, as the trial court fundamentally erred by reading to the jury the instruction for resisting arrest without violence, rather than the instruction for resisting arrest with violence. See Gaines v. State, 652 So. 2d 458 (Fla. 4th DCA 1995) (where instructions read to jury are for a crime different from that which defendant is charged and convicted of, verdict as to that crime is a nullity; error is fundamental requiring reversal even in absence of an objection.)…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morris v. Peggy Ann Morris (Armstrong), 496 So. 2d 255 (Fla. 1st DCA 1986)
- Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986)