JEROME ARDIS RANGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted of a crime not charged in the information, nor a lesser included offense, unless the information alleges the elements of that offense.
Appellant was charged with battery on a police officer but convicted of assault after a bench trial. The State concedes the conviction is improper.…
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SHAHOOD, J.
Appellant, Jerome Ardis Range, was charged by Information with battery on a police officer and after a bench trial was found guilty of assault and sentenced to time served. Appellant seeks reversal of his conviction because he was convicted of a crime which was not charged in the Information against him and which is not a lesser included offense of the crime which was charged. Appellee, State of Florida, acknowledges that the law in this district supports appellant’s position.
In K.H. v. State, 763 So. 2d 1187, 1188 (Fla. 4th DCA 2000), the defendant was charged with aggravated battery and was tried by the trial court. He was found guilty of aggravated assault, a crime which is not a lesser-included offense of aggravated battery. Id. In reversing, this court held,
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). Accordingly, -based on K.H., we reverse appellant’s conviction for assault.
REVERSED.
STONE and GROSS, JJ., concur.
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Citator
Cited By
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Negron v. State, 938 So. 2d 650 (Fla. 4th DCA 2006)…Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995) (applying the general rule to convictions on lesser included offenses of aggravated assault where the information alleged only the elements of murder and not a wellfounded fear); Range v. State, 834 So. 2d 379 (Fla. 4th DCA 2003) (conviction of assault reversed where court found that defendant was charged with battery and assault is not a lesser included offense of battery). Based on the foregoing, we hold the trial court erred in instructing the jury on…
Authorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- GAY v. State, 432 So. 2d 602 (Fla. 2d DCA 1983)
- Kessing v. State, 714 So. 2d 554 (Fla. 5th DCA 1998)
- K.H. v. State, 763 So. 2d 1187 (Fla. 4th DCA 2000)