MARK ANTHONY O'BRYAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Court reversed conviction and remanded for new trial because jury was instructed on an uncharged alternative offense under section 800.04(2) when the information charged only sections 800.04(1) and 800.04(4), making the general verdict a nullity.
A jury instruction on a crime not charged in the information constitutes fundamental error requiring reversal and new trial, even if one charged crime was included in the instructions.
[1] A jury instruction on a crime not charged in the information constitutes fundamental error requiring reversal, and a general verdict resulting from such instruction is a…
Previewing 1 of 1 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 verdict which finds a person guilty of a crime with which the accused was not charged is a nullity.”
Court cited Moore v. State for the principle that verdicts convicting on uncharged crimes are void.
Appellant was charged with lewd and lascivious assault under section 800.04(1) or knowingly committing a lewd or lascivious act in the presence of a c…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Lewd And Lascivious Assault cases and more on FLexlaw
PER CURIAM.
Appellant raises two issues in this direct appeal. We affirm on the first issue without further discussion, but we reverse for new trial on the second issue.
Appellant was charged in a single count with lewd and lascivious assault in violation of section 800.04(1), Florida Statutes (1993), or knowingly committing a lewd or lascivious act in the presence of a child under sixteen years of age in violation of section 800.04(4). At trial, however, the court instructed the jury without objection on the alternatives of sections 800.04(1) and 800.04(2). The jury found him guilty as charged. Appellant contends that the court’s instruction to the jury on a crime not charged is fundamental error. We agree. Although one of the crimes on which the court instructed conformed to the information, the court failed to instruct on the information’s alternative offense and instead instructed on an uncharged offense. The jury’s general verdict makes it impossible to determine of which offense appellant was found guilty. See Owens v. State, 593 So. 2d 1113 (Fla. 1st DCA 1992). Because the court instructed the jury on a crime not charged, the resulting verdict is a nullity. Gaines v. State, 652 So. 2d 458 (Fla. 4th DCA 1995); Moore v. State, 496 So. 2d 255, 256 (Fla. 5th DCA 1986)(“A verdict which finds a person guilty of a crime with which the accused was not charged is a nullity.”). Accordingly, the cause is remanded for new trial.
MINER, ALLEN and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gaines v. State, 652 So. 2d 458 (Fla. 4th DCA 1995)
- 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)
- Derward Owens v. State, 593 So. 2d 1113 (Fla. 1st DCA 1992)