JOSEPH ABBATE, 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.
Joseph Abbate was convicted of violating Florida's lewd and lascivious statute, but the trial court instructed the jury on a subsection not charged in the information and admitted improper collateral crimes evidence. The appellate court reversed, finding the conviction for an uncharged offense constitutes fundamental error.
A conviction for a crime not charged in the information constitutes fundamental error and renders the verdict a nullity. Additionally, the admission of collateral crimes evidence solely to corroborate a witness's credibility without a familial relationship present violates Florida's evidence rules and is improper.
[1] A jury verdict finding a defendant guilty of a crime not charged in the information is a nullity.
[2] A conviction for a crime not charged in the information constitutes fundamental error.
Previewing 2 of 4 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.”
Establishes the fundamental principle that conviction for an uncharged offense renders a verdict void
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with violations under subsections (1), (3), and (4) of Florida Statute section 800.04, but the trial court instructed the jury a…
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FARMER, J.
Defendant argues that the state’s information charged him only with violations under subsection (1), (3) and (4) of section 800.04 but that the trial judge instructed on—and the jury found him guilty of—a violation under subsection (2). He also contends that the judge improperly admitted collateral crimes evidence. We agree and reverse.
The facts and circumstances regarding the issue relating to the crimes charged are identical to those in O’Bryan v. State, 692 So. 2d 290 (Fla. 1st DCA 1997). As there, the information in this case charged violations under other parts of section 800.04 but said nothing that could reasonably be interpreted as an alleged violation of subsection (2), relating to simulated sexual intercourse. As the OBryan court said:
“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.’).”
692 So. 2d at 291. Essentially defendant was convicted of a crime not charged. That is fundamental error. We also conclude that the admission of “other crimes” evidence was improper. § 90.404(2)(a), Fla. Stat. (1997) (“Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”). It is apparent beyond any doubt that the state sought by the introduction of this evidence to corroborate the credibility of the complaining witnesses. As the state acknowledges, however, there are no familial contacts present in this case. See Heuring v. State, 513 So. 2d 122 (Fla.1987); State v. Rawls, 649 So. 2d 1350 (Fla.1994) (defendant did not have familial relationship with victim and thus collateral crimes evidence improperly used to corroborate victim’s testimony); and Saffor v. State, 660 So. 2d 668 (Fla.1995).
REVERSED.
SHAHOOD and HAZOURI, JJ., concur.
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Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)…tion, we cannot affirm the kidnapping convictions on this basis. It is well settled that a trial court commits fundamental error by convicting a defendant on a crime not charged. Taylor v. State, 760 So. 2d 298 (Fla. 4th DCA 2000); Abbate v. State, 745 So. 2d 409, 410 (Fla. 4th DCA 1999). Moreover, “[b]e-cause the court instructed 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.…
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Taylor v. State, 760 So. 2d 298 (Fla. 4th DCA 2000)…neral verdict form. She then moved for arrest of judgment or a new trial, which was denied. This appeal followed. It is well established that a trial court commits fundamental error by convicting a defendant on a crime not charged. Abbate v. State, 745 So. 2d 409, 410 (Fla. 4th DCA 1999). A trial court also commits fundamental error when it instructs the. jury on an alternative theory which was not charged in the information. See Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999). Both fundamental errors o…
Authorities Cited
- State v. Fundora, 513 So. 2d 122 (Fla. 1987)
- Frederick A.R. Heuring v. State, 513 So. 2d 122 (Fla. 1987)
- Saffor v. State, 660 So. 2d 668 (Fla. 1995)
- State v. Augustus J. Rawls, 649 So. 2d 1350 (Fla. 1994)
- Boca Raton Small Engines & Emp'rs Self Ins. Fund v. Bellak, 692 So. 2d 290 (Fla. 1st DCA 1997)
- 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)