JOHNNY CLARENCE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Smith appealed his convictions for aggravated stalking, attempted kidnapping with a firearm, attempted first degree murder with a firearm, and burglary of a dwelling while armed. The appellate court reversed the attempted kidnapping conviction due to an erroneous jury instruction but affirmed the other convictions, vacating all sentences for resentencing under a corrected scoresheet.
The conviction for attempted kidnapping must be reversed because the jury instruction was erroneous—it permitted conviction based on intent to commit battery, a misdemeanor, when the statute requires intent to commit or facilitate commission of a felony. The other convictions are affirmed, but all sentences are vacated for resentencing based on a corrected scoresheet that reflects the reversal of the attempted kidnapping conviction.
[1] A jury instruction for attempted kidnapping is erroneous if it defines the requisite intent as the intent to commit or facilitate a misdemeanor, rather than a felony.
[2] Fundamental error in a jury instruction may be considered on appeal even if not objected to at trial.
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“The trial court erred in instructing the jury that it could find the appellant guilty of attempted kidnapping if it found that the appellant forcibly or by threat confined, abducted, or imprisoned the alleged victim with the intent to 'commit or, or facilitate the commission of a crime, being battery.'”
Identifies the fundamental error in the jury instruction regarding the mental element required for attempted kidnapping.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of aggravated stalking, attempted kidnapping with a firearm, attempted first degree murder with a firearm, and burglary of a dwell…
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PER CURIAM.
The appellant challenges his convictions and sentences for aggravated stalking, attempted kidnapping with a firearm, attempted first degree murder with a firearm, and burglary of a dwelling with an assault or battery while armed with a firearm. We conclude that the conviction and sentence for attempted kidnapping with a firearm must be reversed because of an incorrect jury instruction. We affirm the other convictions but vacate the sentences so that new sentences may be imposed under a corrected score-sheet.
The trial court erred in instructing the jury that it could find the appellant guilty of attempted kidnapping if it found that the appellant forcibly or by threat confined, abducted, or imprisoned the alleged victim with the intent to “commit or, or facilitate the commission of a crime, being battery.” The court should have instructed the jury that it could find the appellant guilty of attempted kidnapping if it found that any such confinement, abduction, or imprisonment was with the intent to “commit or facilitate commission of (applicable felony).” See Fla. Std. Jury Inst. (Crim.) at 94(c). The crime of battery is a misdemeanor, not a felony. See § 784.03(2), Fla. Stat. Although there was no objection at trial, this error is fundamental. See Yates v. United States, 354 U.S. 298, 300, 77 S.Ct. 1064, 1076, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Pugh v. State, 624 So. 2d 277 (Fla. 2d DCA 1993). We accordingly reverse the conviction and sentence for attempted kidnapping and remand for a new trial on that charge.
The convictions for the other offenses are affirmed, but, because reversal of the attempted kidnapping conviction will alter the appellant’s sentencing range for these offenses, the sentences for these offenses are vacated. New sentences may be imposed on remand based upon a corrected scoresheet.
Also on remand, the trial court is directed to correct the judgment to indicate that aggravated stalking is a third degree felony, rather than a second degree felony; to indicate that attempted first degree murder with a firearm is a life felony, rather than a “PBL” felony; and to indicate that attempted first degree murder is a violation of § 777.04, Florida Statutes.
MINER, ALLEN and MICKLE, JJ., concur.
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Smith v. State, 723 So. 2d 872 (Fla. 1st DCA 1998)…not fundamental and, therefore, cannot be reviewed by this court because they were not preserved through contemporaneous objection or through the filing of Rule 3.800(b) motion within 30 days of the rendition of sentence. However, in Smith v. State, 687 So. 2d 308 (Fla. 1st DCA 1997), the direct appeal of this case, we directed the trial court upon resentencing of Appellant to correct its judgment to: indicate that aggravated stalking is a third degree felony, rather than a second degree felony; to indicate…
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Nicholson v. State, 62 So. 3d 703 (Fla. 1st DCA 2011)…are affirmed. In light of the reversal of the trafficking conviction, the appellant’s sentences are vacated and the case is remanded for resentencing under a corrected scoresheet. See Vroom v. State, 48 So. 3d 82 (Fla. 2d DCA 2010); Smith v. State, 687 So. 2d 308 (Fla. 1st DCA 1997). ROBERTS, CLARK, and WETHERELL, JJ., concur.…
Authorities Cited
- Burks v. United States, 437 U.S. 1 (U.S. 1978)
- Yates v. United States, 354 U.S. 298 (U.S. 1957)
- Pugh v. State, 624 So. 2d 277 (Fla. 2d DCA 1993)