S.J., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
S.J., a child, was charged with battery upon a law enforcement officer. During the adjudicatory hearing, the trial judge found the proof insufficient to support that charge, but found it sufficient to support guilt of the uncharged crime of resisting an officer with violence and entered an order of delinquency. Apparently the court believed that the crime of resisting was a lesser included offense of the original charge. See e.g. Lee v. State, 779 So. 2d 607, 608 (Fla. 2d DCA 2001).
The conviction of a crime not charged constitutes fundamental error and we vacate the order of delinquency. A trial judge has no authority to issue an order amending a charge. Snipes v. State, 733 So. 2d 1000 (Fla.1999).
ORDER VACATED.
THOMPSON, C.J., PETERSON and PALMER, JJ., concur.
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Cyril Innis v. State, 893 So. 2d 696 (Fla. 5th DCA 2005)…te, 827 So. 2d 1075 (Fla. 5th DCA 2002); Wilson v. State, 776 So. 2d 347, 352 (Fla. 5th DCA 2001); § 775.021, Fla. Stat. (2004). Appellant’s conviction and sentence on Count IV are REVERSED. THOMPSON and ORFINGER, JJ, concur. . See S.J. v. State, 831 So. 2d 1288 (Fla. 5th DCA 2002) ("The conviction of a crime not charged constitutes fundamental error.”); Abies v. State, 338 So. 2d 1095, 1096 (Fla. 1st DCA 1976) ("an accused is entitled to have the charge proved substantially as laid; he cannot be charged wi…
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Authorities Cited
- Snipes v. State, 733 So. 2d 1000 (Fla. 1999)
- Anthony v. LEE, 779 So. 2d 607 (Fla. 2d DCA 2001)