PAUL MUNDELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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GRIFFIN, J.
Appellant, Paul Mundell, complains on appeal about certain comments of the prosecutor which assertedly rise to the level of fundamental error. We find no merit to this claim.
Mr. Mundell also complains about his conviction of attempted aggravated assault on a law enforcement officer. Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist. Merritt v. State, 712 So. 2d 384 (Fla.1998), Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996) (conviction of a nonexistent crime is fundamental error mandating reversal even when error was invited by defendant, as by request for a jury instruction on a nonexistent offense), citing Achin v. State, 436 So. 2d 30 (Fla.1982). The proper remedy is to remand for resentencing on the offense of attempted aggravated assault, without use of the statutory enhancement factor. See Merritt, supra; Mills v. State, 714 So. 2d 1198 (Fla. 4th DCA 1998).
AFFIRMED in part; REVERSED in part; and REMANDED.
W. SHARP and GOSHORN, JJ., concur.
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State v. Klayman, 835 So. 2d 248 (Fla. 2002)…ourts have held that imposition of criminal sanctions without statutory authority is fundamental error. See, e.g., Achin v. State, 436 So. 2d 30, 31 (Fla.1982) ("We hold that one may never be convicted of a nonexistent crime....”); Mundell v. State, 739 So. 2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he…
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Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006)…State, 712 So. 2d 384 (Fla.1998). A conviction for a non-existent crime is fundamental error that can be raised at any time, even if the error was “invited” by acceptance of a negotiated plea or by a request for jury instructions. Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999); Fredericks v. State, 675 So. 2d 989 (Fla. 1st. DCA 1996). One cannot be convicted of a non-existent offense. Achin v. State, 436 So. 2d 30 (Fla.1982). The conviction is illegal and cannot be allowed to stand. The trial court e…
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Jordan v. State, 801 So. 2d 1032 (Fla. 5th DCA 2001)…lthough Jordan did not then assert that she was being charged with a nonexistent offense, this court has consistently held that conviction of a nonexistent crime is fundamental error that may be raised for the first time on appeal. Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999); Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987), cert. denied, 525 So. 2d 881 (Fla.1988). Thus if Jordan is correct, her conviction for introduction of contraband into a county facility must be reversed. Jordan’s argument…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Merritt v. State, 712 So. 2d 384 (Fla. 1998)
- Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996)
- Precious Mills v. State, 714 So. 2d 1198 (Fla. 4th DCA 1998)