KEM MATEO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a conviction for aggravated battery cannot stand if the charging document does not allege the essential elements of the crime.
The defendant was charged with sexual battery, but the jury found him guilty of aggravated battery. The charging document did not allege the essential…
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DAVIS, Judge.
Kem Mateo appeals his aggravated battery conviction. He argues that the State’s charging document did not allege the essential elements for aggravated battery, and he cannot stand convicted of a crime which the State did not charge. We agree and reverse.
The State charged Mateo with one count of sexual battery using force likely to cause serious personal injury, and two counts of sexual battery using threats of force likely to cause serious personal injury. The jury found Mateo guilty of aggravated battery on count one, and not guilty on counts two and three.
We initially note that aggravated battery is not a necessarily-included offense of sexual battery. See Tolbert v. State, 474 So. 2d 5, 6 (Fla. 3d DCA 1985). Accordingly, the State’s charging document will not support Mateo’s conviction unless it alleges the essential elements of aggravated battery outlined in section 784.045, Florida Statutes (1995). That isthe information must allege that Mateo committed a battery, and in doing so: (1) intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement; or (2) used a deadly weapon. See § 784.045. Here, the information alleged only that Mateo used force “likely to cause serious personal injury.” Furthermore, the State did not charge the use of a deadly weapon. Consequently, the trial court erred by instructing the jury on the aggravated battery charge.
The State contends that Mateo waived any deficiency in the charging document by failing to timely object to the aggravated battery jury instruction. Again, we disagree. A defendant may raise such an error at any time. See Velasquez v. State, 654 So. 2d 1227, 1228 (Fla. 2d DCA 1995) (citing State v. Von Deck, 607 So. 2d 1388 (Fla.1992); State v. Gray, 435 So. 2d 816 (Fla.1983)).
Reversed and remanded for further proceedings consistent with this opinion.
WHATLEY, A.C.J., and GREEN, J., Concur.
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Nesbitt v. State, 889 So. 2d 801 (Fla. 2004)…QUINCE, J. We have for review the decision in Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002), which certified conflict with the decisions in Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001), and Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000).1 We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons stated below, we approve the decision of the Fifth District. [*802] FACTS During an argument with is wife, Ronald Nesbitt (Nesbitt) got his stun gun and r…1 / 3
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Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002)…offense); Herise v. State, 763 So. 2d 393 (Fla. 3d DCA 2000); Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996)(en banc). We recognize that a line of cases represented by Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001); and Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000) hold that an error of this type is fundamental in nature.1 We certify conflict with those decisions. AFFIRMED. GRIFFIN, J., concurs. HARRIS, J., concurs specially with opinion. . Cases such as K.H. v. State, 763 So. 2d 1187 (F…
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Chambers v. State, 880 So. 2d 696 (Fla. 2d DCA 2004)…r aggravated assault with a firearm. Mr. Chambers was charged with attempted second-degree murder with a firearm and convicted of aggravated assault with a firearm as a lesser-included offense. If this court followed its decisions in Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000), and Wilburn v. State, 840 So. 2d 384 (Fla. 2d DCA 2003), we would be obligated to reverse this conviction because aggravated assault is not a category one necessarily included lesser offense of attempted second-degree murder and…1 / 4
Previewing 3 of 9 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)
- State v. von Deck, 607 So. 2d 1388 (Fla. 1992)
- Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995)
- Theodis Tolbert v. State, 474 So. 2d 5 (Fla. 3d DCA 1985)