TAURIS HUBBARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that erroneous jury instructions on the elements of a criminal offense constitute fundamental error, requiring reversal for a new trial.
Mr. Hubbard was convicted of aggravated child abuse. He appealed for the first time, arguing the trial court gave improper jury instructions on the ch…
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PER CURIAM.
Following the issuance of our decision in this case, Mr. Hubbard filed a motion for rehearing. As authority for the motion, Mr. Hubbard cited to Ward v. State, 655 So. 2d 1290 (Fla. 5th DCA 1995). On the authority of Ward we grant rehearing, withdraw our previous decision, and substitute the following in its place.
Mr. Hubbard was charged with committing aggravated child abuse1 upon his girlfriend’s two-year-old son. The matter went to trial and the jury found Mr. Hubbard guilty as charged. He contends, for the first time on appeal, that he is entitled to receive a new trial because the trial court issued improper jury instructions on the charged offense of aggravated child abuse and the lesser included offense of child abuse. Our review of the record reveals that the trial court s instructions were erroneous.
The issuance of “an incomplete and inaccurate instruction on the law is fundamental error where the error relates to the elements of the criminal offense.” Ward v. State, 655 So. 2d 1290, 1292 (Fla. 5th DCA 1995); see also Johnson v. State, 632 So. 2d 1062 (Fla. 5th DCA 1994). Here, Mr. Hubbard was convicted of aggravated child abuse based on instructions which misstated the elements of both the charged offense and a lesser included offense. Given that there is a reasonable probability that the court’s instruction affected the jury’s verdict, we must reverse for a new trial. Accordingly, we vacate Mr. Hubbard’s judgment and sentence and remand this matter to the trial court for a new trial.
JUDGMENT and SENTENCE VACATED, and CAUSE REMANDED FOR NEW TRIAL.
ANTOON, C.J., DÁUKSCH and COBB, JJ., concur. . § 827.03(2), Fla. Stat. (1997).
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Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001)…re asserted to mislead the jury concerning an element of the crime must be preserved for appeal. See Auger v. State, 725 So. 2d 1178, 1178-79 (Fla. 2nd DCA 1998); see also Smith v. State, 772 So. 2d 625 (Fla. 4th DCA 2000). But see Hubbard v. State, 751 So. 2d 771, 772 (Fla. 5th DCA 2000). If the challenged instructions define either a nonexistent crime or totally fail to address an element of a crime, the alleged error may be considered to be fundamental. See Mosely v. State, 682 So. 2d 605, 606 (Fla. 1st DC…1 / 2
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Eston E. Anderson v. State, 780 So. 2d 1012 (Fla. 4th DCA 2001)…ged. See State v. Jones, 311 So. 2d 1163 (Fla.1979). It has also been held that “issuance of an incomplete and inaccurate instruction on the law is fundamental error where the error relates to the elements of the criminal offense.” Hubbard v. State, 751 So. 2d 771, 772 (Fla. 5th DCA 2000) (quoting Ward v. State, 655 So. 2d 1290 (Fla. 5th DCA 1995)). However, only where the erroneous instruction pertains to a disputed element of the crime will the error be deemed fundamental. See Johnson v. State, 632 So. 2d 1…
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King v. State, 800 So. 2d 734 (Fla. 5th DCA 2001)…(Fla. 4th DCA 2001). If the trial court issues an incomplete or inaccurate jury instruction, fundamental error may occur if the error relates to an element of the crime. Neal v. State, 783 So. 2d 1102 (Fla. 5th DCA 2001); Anderson; Hubbard v. State, 751 So. 2d 771 (Fla. 5th DCA 2000); Jones v. State, 666 So. 2d 995 (Fla. 5th DCA 1996). However, in order for the error in the instruction to be fundamental, it must pertain to an element of the crime that is a disputed issue in the case. Duncan v. State, 703 So.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ward v. State, 655 So. 2d 1290 (Fla. 5th DCA 1995)
- Johnson v. State, 632 So. 2d 1062 (Fla. 5th DCA 1994)