GRANT MAULDIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction for misdemeanor battery is improper when the defendant was only charged with aggravated assault and battery is not a lesser included offense of aggravated assault.
[1] A conviction on a charge not made by the indictment or information denies due process.
[2] A defendant cannot be convicted of battery when the information only charged aggravated assault and battery is neither a category two lesser included offense nor were its…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with aggravated assault. The state conceded aggravated assault was not proved but battery was. The trial court found appellant g…
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CAMPBELL, Acting Chief Judge.
Appellant argues, and the state concedes, that appellant was improperly convicted of misdemeanor battery (§ 784.03, Fla. Stat.(1995)). The information only charged appellant with aggravated assault (§ 784.021, Fla.Stat.(1995)). Battery is neither a category two lesser included offense of aggravated assault, nor were the elements of battery charged in the information. Appellant, therefore, was not properly apprised of the charges he would have to meet. Accordingly, we reverse and remand for further proceedings.
At trial, the state conceded that though aggravated assault was not proved, battery had been proved. The court agreed and found appellant guilty of misdemeanor battery. This was error. The information alleged that appellant intentionally and unlawfully threatened to do violence to Becky Mauldin, had an apparent ability to do so and did an act creating a well-founded fear in Becky that such violence was imminent and, in so doing, used a deadly weapon, a firearm, without intent to kill Becky. However, in order to properly charge a battery, the state would have been required to allege that appellant intentionally committed an unwanted touching (§ 784.03, Fla.Stat.(1995)). That allegation was not present.
A conviction on a charge not made by the indictment is a denial of due process. See State v. Gray, 435 So. 2d 816 (Fla.1983); Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995). Since battery is not a category two lesser included offense of aggravated assault, and the elements of battery were not charged in the information, appellant was improperly convicted on a charge not made in the indictment. See Fla. Std. Jury Instr. (Crim.), Schedule of Lesser Included Of fenses; B.S.W. v. State, 668 So. 2d 1075 (Fla. 2d DCA 1996).
We, accordingly, reverse and remand. On remand, the state may file an amended information and retry appellant on the offense of battery. See Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995); Velasquez. See also Von Deck v. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993).
PARKER, J., and DAKAN, STEPHEN L., Associate Judge, concur.
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Citator
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Castillo v. State, 929 So. 2d 1180 (Fla. 4th DCA 2006)…utional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument. See State v. Gray, 435 So. 2d 816, 818 (Fla.1983); Moran v. State, 869 So. 2d 613, 615 (Fla. 4th DCA 2004); Mauldin v. State, 696 So. 2d 801, 801 (Fla. 2d DCA 1997). “[T]he test for granting relief based on a defect in the charging document is actual prejudice to the fairness of the trial.” Gray, 435 So. 2d at 818. So-called technical deficiencies in a charging instrument are waived if t…
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Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002)…. HARRIS, J., concurs specially with opinion. . Cases such as K.H. v. State, 763 So. 2d 1187 (Fla. 4th DCA 2000), Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995), Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995), and Mauldin v. State, 696 So. 2d 801 (Fla. 2d DCA 1997), which hold that conviction for a lesser offense not within the ambit of the charging document is fundamental error, are distinguishable. Those cases, relied upon by the courts in Levesque and Mateo, involved bench trials where th…
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Chambers v. State, 880 So. 2d 696 (Fla. 2d DCA 2004)…ed offense.8 If the rule announced in Ray is intended to apply in nonjury cases, our ruling in Velasquez can be questioned. Similar criticism could be aimed at our opinions in C.R.C. v. State, 842 So. 2d 235 (Fla. 2d DCA 2003), and Mauldin v. State, 696 So. 2d 801 (Fla. 2d DCA 1997).9 There is, of course, a significant distinction in trial tactics between a jury trial and a nonjury trial. It is often prudent for a defendant in a jury trial to give the jury as many options as possible to choose a lesser-inclu…
Previewing 3 of 7 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)
- Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995)
- Efram Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995)
- von Deck v. Hon. Kerry I. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993)
- B.S.W. v. State, 668 So. 2d 1075 (Fla. 2d DCA 1996)
- State v. Cromatie, 668 So. 2d 1075 (Fla. 2d DCA 1996)