MARIO FUENTES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mario Fuentes was convicted of aggravated assault with a deadly weapon (motor vehicle), resisting arrest, and reckless driving. The Florida appellate court reversed his conviction because the trial court gave a fundamentally erroneous jury instruction on the fourth element of aggravated assault, allowing the jury to convict on a theory not charged in the information.
The trial court committed fundamental error. The improper instruction allowed the jury to find Fuentes guilty of aggravated assault on a simple assault with intent to commit assault theory, which was not charged and would not support conviction, thereby negating Fuentes' only defense of lack of intent to use the vehicle to strike McCarthy.
[1] A jury instruction on aggravated assault is fundamentally erroneous when it allows the jury to convict based on a theory not charged in the information.
[2] An improper jury instruction on aggravated assault can negate a defendant's defense of lack of intent.
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Join FLexlaw to unlock all legal intelligence“We conclude fundamental error occurred when the jury was improperly instructed on the fourth element of aggravated assault. The improper instruction allowed the jury to find Fuentes guilty of aggravated assault on a theory which was not charged, see State v. Allen, 519 So.2d 1076 (Fla. 1st DCA 1988), and which would not support conviction, i.e., commission of a simple assault with the intent to commit the simple assault.”
Establishes the core holding that the jury instruction was fundamentally erroneous and allowed conviction on an uncharged and legally insufficient theory
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Join FLexlaw to unlock all legal intelligenceFuentes was charged with aggravated assault with a deadly weapon (a motor vehicle) against Arthur McCarthy. The trial court initially instructed the j…
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PER CURIAM.
Mario Fuentes appeals the judgment entered against him after a jury found him guilty of aggravated assault with a deadly weapon, a motor vehicle, against Arthur McCarthy; resisting arrest without violence; and reckless driving. Fuentes argues the trial court committed fundamental error in instructing the jury on the fourth element of aggravated assault. We agree. Resolution of this issue renders moot Fuentes’ second issue regarding his sentence.
When the jury was first instructed, the trial court explained the fourth element of aggravated assault: “And four, the assault was made with a fully formed conscious intent to commit assault upon Arthur McCarthy.” (Emphasis supplied). Fuentes’ information charged aggravated assault relying on the use of a deadly weapon, a vehicle, rather than the alternative basis of intending to commit a felony.
While deliberating the jury asked for an explanation of the difference between assault and aggravated assault, and the trial court realized the state’s typed instruction failed to include the “deadly weapon” alternative to the fourth element of aggravated assault. The jury returned and the court read the aggravated assault instruction, this time including the “deadly weapon” alternative, but again misstating the latter alternative: “Four, that the assault was made with a deadly weapon, or the assault was made with the fully formed conscious intent to commit assault upon Arthur McCarthy.” (Emphasis supplied). The court explained to the jury that the distinction between assault and aggravated assault was that aggravated assault required the jury to “find that the assault was made with a deadly weapon or the assault was made with the fully formed conscious intent to commit the aggravated assault upon the victim.” (Emphasis supplied).
We conclude fundamental error occurred when the jury was improperly instructed on the fourth element of aggravated assault.1 The improper instruction allowed the jury to find Fuentes guilty of aggravated assault on a theory which was not charged, see State v. Allen, 519 So. 2d 1076 (Fla. 1st DCA 1988), and which would not support conviction, i.e., commission of a simple assault with the intent to commit the simple assault.2 By instructing the jury it could find Fuentes guilty of aggravated assault whether or not he intended to use his vehicle to run over McCarthy (i.e., if Fuentes committed an assault and intended to commit an assault), the erroneous instruction negated Fuentes’ only defense: a lack of intent to hit McCarthy with the vehicle. Sigler v. State, 590 So. 2d 18, 20 (Fla. 4th DCA 1991).
REVERSED and REMANDED.
POLEN, KLEIN and SHAHOOD, JJ., concur. . Section 784.021, Florida Statutes “provides that aggravated assault can be a crime in which a deadly weapon is used, or is an assault with intent to commit a felony (no weapon required).” Ventosa v. State, 510 So. 2d 1093, 1094 (Fla. 1st DCA 1987).
. The jury instruction for assault provides:
Before you can find the defendant guilty of Assault, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
Standard Jury Instructions in Criminal Cases (97-I), 697 So. 2d 84, 97 (Fla.1997) (emphasis supplied).
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Zamir Garzon and Ray C. Balthazar v. State, 939 So. 2d 278 (Fla. 4th DCA 2006)…th one of the means, but the jury is instructed in a manner that permits conviction for another, uncharged mode of guilt. See Taylor v. State, 760 So. 2d 298 (Fla. 4th DCA 2000); Hodges v. State, 878 So. 2d 401 (Fla. 4th DCA 2004); Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999). For example, in Taylor, the trial court committed fundamental error by instructing the jury that it could convict Taylor of aggravated battery if he used a deadly weapon or caused permanent disfigurement — separate violations un…
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Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)…tructed the jury on a crime not charged, the resulting verdict is a nullity.” Abbate, 745 So. 2d at 410. Such an instruction is also fundamental error. Taylor, 760 So. 2d 298; Hendricks v. State, 744 So. 2d 542 (Fla. 1st DCA 1999); Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999). Hence, were we to affirm the kidnapping convictions, we would be affirming convictions that, at law, are a nullity. This we will not do. Based on the foregoing, we direct that the convictions for armed home invasion robbery and…
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Hendricks v. State, 744 So. 2d 542 (Fla. 1st DCA 1999)…information. We agree. See O’Bryan v. State, 692 So. 2d 290 (Fla. 1st DCA 1997) (holding that it was error to instruct on theory of violation of section 800.04, Florida Statutes, which had not been charged in information); see also Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999) (holding that it was error to instruct jury on theory of committing aggravated assault, which had not been charged in the information). Battery on a law enforcement officer can be committed in two ways. A defendant can commit a…
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
- STANDARD JURY INSTRUCTIONS IN CRIM. CASES (97-1), 697 So. 2d 84 (Fla. 1997)
- Sanderlen v. State, 590 So. 2d 18 (Fla. 4th DCA 1991)
- State v. Allen, 519 So. 2d 1076 (Fla. 1st DCA 1988)
- Ventosa v. State, 510 So. 2d 1093 (Fla. 1st DCA 1987)