K.H., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction for a lesser-included offense requires the charging information to allege the elements of that offense, and conviction without such allegations constitutes fundamental error.
Appellant was charged with aggravated battery but convicted of aggravated assault, which is not a lesser-included offense. The information did not all…
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STONE, J.
Appellant was tried in a juvenile proceeding on a charge of aggravated battery. At the conclusion of the hearing, the trial court found Appellant guilty of aggravated assault. Aggravated assault, however, is not a lesser-included offense of aggravated battery. See Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)(en banc).
To be convicted of any lesser-included offense, absent a waiver, the information charging the greater offense must allege the elements of the lesser offense. See, e.g., Gay v. State, 432 So. 2d 602, 604 (Fla. 2d DCA 1983). Here, the information did not allege that Appellant committed an act creating a well-founded fear that violence to the victim was imminent, as required by section 784.021, Florida Statutes. Conviction under these circumstances constitutes fundamental error. See Ray v. State, 403 So. 2d 956 (Fla.1981), called into doubt on other grounds, Greene v. State, 714 So. 2d 554 (Fla. 2d DCA 1998).
We recognize that, notwithstanding this general rule, such an error may be waived where there is no objection raised and defense counsel either requests the improper charge or relies on that charge as evidenced by argument to the jury. See Ray, 403 So. 2d at 961. Here, significantly, Appellant played no role in the trial court’s decision to convict on the uncharged offense, and it was not incumbent on Appellant to anticipate the court’s decision. We, therefore, reverse the conviction.1
DELL and TAYLOR, JJ., concur. . We note that Appellant recognizes that our opinion does not preclude the state from filing a new information charging Appellant with aggravated assault, if it so elects. See Gay, 432 So. 2d at 604.
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Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002)…e, 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 (Fla. 4th DCA 2000), Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995), Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995), and Mauldin v. State, 696 So. 2d 801 (Fla. 2d DCA 1997), which hold that conviction for a lesser offense not within…
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Lane v. State, 861 So. 2d 451 (Fla. 4th DCA 2003)…y conviction. Ray, 403 So. 2d at 961. We therefore reverse the conviction and sentence for aggravated battery. On remand, the state may file a new or amended information charging appellant with aggravated battery if it so elects. See K.H. v. State, 763 So. 2d 1187, 1188 n. 1 (Fla. 4th DCA 2000). Lane urges us to decide this case based on Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001). However, we conclude that Levesque was wrongly decided, in that it conflicts with Ray and an earlier en banc opinion…
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Negron v. State, 938 So. 2d 650 (Fla. 4th DCA 2006)…l court erred in instructing the jury on aggravated assault. We accordingly reverse and remand for a new trial. On remand, the State may file a new or amended information charging appellant with aggravated assault if it so elects. See K.H. v. State, 763 So. 2d 1187, 1188 n. 1 (Fla. 4th DCA 2000). Because we are reversing for a new trial we decline to address all other issues raised by appellant. Reversed and Remanded for New Trial. FARMER and TAYLOR, JJ., concur.…
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
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)
- GAY v. State, 432 So. 2d 602 (Fla. 2d DCA 1983)
- Kessing v. State, 714 So. 2d 554 (Fla. 5th DCA 1998)