DAVID VELASQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of three counts of aggravated assault with a firearm as lesser included offenses of attempted first degree murder. The court reversed because the charging document failed to allege an essential element of aggravated assault with a firearm—that the offender created a well-founded fear of imminent violence in the victims.
A conviction on a charge not fully alleged in the indictment violates due process and is reversible error. The charging document's failure to allege that appellant created a well-founded fear of imminent violence in the victims was fatal to the aggravated assault with a firearm convictions.
[1] A conviction for a lesser included offense cannot stand if the charging document fails to allege all the essential elements of that offense.
[2] The failure of an information to allege all essential elements of a crime is a due process violation that can be raised at any time, including on appeal.
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Join FLexlaw to unlock all legal intelligence“One of the essential elements of this crime which the state must allege is that the offender created a well founded fear in the victim of imminent violence.”
Establishes that well-founded fear of imminent violence is an essential element of aggravated assault with a firearm that must be alleged in the charging document.
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Join FLexlaw to unlock all legal intelligenceAppellant was originally charged with four counts of aggravated assault with a firearm and four counts of attempted aggravated battery. The state amen…
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PER CURIAM.
The appellant, David Velasquez, challenges the judgments and sentences entered against him after he was found guilty of three counts of aggravated assault with a firearm. We reverse.
Appellant was originally charged with four counts of aggravated assault with a firearm, in violation of section 784.021, Florida Statutes (1991), and four counts of attempted aggravated battery, in violation of sections 784.045 and 777.04, Florida Statutes (1991). The state amended the information twice and appellant was ultimately charged with three counts of attempted first degree murder, in violation of sections 782.04 and 777.04, Florida Statutes (1991). Appellant waived his right to a jury trial. The trial court heard the evidence and found appellant innocent of the attempted first degree murder charges but found him guilty of three counts of aggravated assault with a firearm. After the trial court adjudicated appellant guilty and imposed sentences, the appellant filed a timely notice of appeal.
Appellant raises several points on appeal. We agree with the contention that the charging document was insufficient to support the convictions of aggravated assault with a firearm and reverse the convictions on that basis.
Appellant was found guilty of the lesser included offense of aggravated assault with a firearm. One of the essential elements of this crime which the state must allege is that the offender created a well founded fear in the victim of imminent violence. State v. Roberts, 616 So. 2d 79 (Fla. 2d DCA 1993). The charging document in the instant case charged only the elements of the crime of attempted first degree murder. It is undisputed that the information failed to allege that the appellant created in the victims a well founded fear of imminent violence. The absence of this specific allegation in the information is reversible error. State v. Von Deck, 607 So. 2d 1388 (Fla.1992); Roberts.
A conviction on a charge not made by the indictment is a denial of due process of law. State v. Gray, 435 So. 2d 816 (Fla.1983). The complete failure of an information to charge a crime is an error that can be raised at any time. State v. Gray, 435 So. 2d at 818. Accordingly, appellant may raise this issue for the first time on appeal.
Because the charging document failed to allege all the essential elements of the lesser included offenses of which appellant was convicted, appellant’s convictions must be reversed. Von Deck; Roberts. Appellant has already been found not guilty of the charged offenses of attempted first degree murder, therefore, he cannot be retried on those charges.
We, accordingly, reverse and remand for further proceedings. See Von Deck v. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993). See also State v. Godwin, 632 So. 2d 228 (Fla. 2d DCA), rev. denied, 640 So. 2d 1107 (Fla.1994).
Reversed and remanded.
SCHOONOVER, A.C.J., and THREADGILL and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)…eeks an instruction on the permissive lesser included offense of aggravated assault.” Id. at 1389. Generally, reversal of a conviction is warranted where the information fails to allege an essential element of a crime. See, e.g., Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995) (applying this general rule to convictions on lesser included offenses of aggravated assault where the information alleged only the elements of murder and not a well-founded fear). Nonetheless, Ray v. State, 403 So. 2d 956, 961 (…
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Pena v. State, 829 So. 2d 289 (Fla. 2d DCA 2002)…LLY, JJ., Concur. . We are aware of the line of cases holding that the failure to allege an essential element of an offense in the charging document is fundamental error, see State v. Von Deck, 607 [*293] So. 2d 1388 (Fla.1992); Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995); State v. Roberts, 616 So. 2d 79 (Fla. 2d DCA 1993), and that such an issue can be raised at any time. State v. Gray, 435 So. 2d 816 (Fla. 1983). These cases, however, are distinguishable. They involve defendants convicted of aggr…
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Efram Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995)…616 So. 2d 79 (Fla. 2d DCA 1993). Because the information failed to allege all of the essential elements of the crime for which he was convicted, Jaramillo’s convictions for aggravated assault with a firearm must be reversed. See Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995). The state cannot retry Jaramillo for attempted first-degree murder; however, the state can file an amended information and proceed against Jaramillo for aggravated assault with a firearm without violating double jeopardy. See Von…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Gray, 435 So. 2d 816 (Fla. 1983)
- State v. von Deck, 607 So. 2d 1388 (Fla. 1992)
- von Deck v. Hon. Kerry I. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993)
- Norman v. State, 616 So. 2d 79 (Fla. 4th DCA 1993)
- State v. Roberts, 616 So. 2d 79 (Fla. 2d DCA 1993)
- State v. Godwin, 632 So. 2d 228 (Fla. 2d DCA 1994)