DWAYNE ANTHONY DEBOSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DeBose was convicted of aggravated battery on a law enforcement officer, but the trial court committed fundamental error by instructing the jury on an uncharged alternative theory (use of a deadly weapon). The appellate court reversed the conviction on this count and remanded for a new trial while affirming the conviction on other grounds.
The trial court committed fundamental error by instructing the jury on the uncharged theory of aggravated battery by use of a deadly weapon. Because the jury returned a general verdict without specifying the basis for conviction, it is impossible to determine if the conviction was based on a charged or uncharged theory, requiring reversal and remand for a new trial. The aggressor instruction issue was properly included and affirmed.
[1] A trial court commits fundamental error by instructing the jury on an alternative theory of an offense not charged in the information when the jury returns a general verd…
[2] A jury instruction on an uncharged theory of aggravated battery on a law enforcement officer constitutes fundamental error if the jury returns a general verdict of guilt.
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Join FLexlaw to unlock all legal intelligence“[W]here an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information and the jury returns a general verdict of guilt without specifying the basis for the conviction.”
Establishes the controlling legal standard for fundamental error in jury instructions on uncharged alternative theories.
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Join FLexlaw to unlock all legal intelligenceDeBose was charged with aggravated battery on a law enforcement officer under three specific theories. At trial, the court instructed the jury on all …
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PER CURIAM.
Appellant argues the trial court reversibly erred on two grounds. First, he argues the trial court fundamentally erred by instructing the jury on the alternate theory of aggravated battery on a law enforcement officer with a deadly weapon, when that crime was not charged. Second, Appellant argues the trial court abused its discretion by instructing the jury on justifiable use of non-deadly force, by including portions of the “aggressor” instruction, thus negating Appellant’s only defense.
We conclude the trial court properly included the applicable portions of the “aggressor” instruction, and affirm this ground without further comment. However, we are compelled to reverse Appellant’s conviction for aggravated battery on a law enforcement officer, and remand for a new trial.
There are four ways to commit aggravated battery. The State charged three, but the trial court instructed the jury on all four. “[W]here an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information” and the jury returns a general verdict of guilt without specifying the basis for the conviction. Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005) (finding fundamental error where jury instructed on alternate theory not charged in the information); Vega v. State, 900 So. 2d 572, 573 (Fla. 2d DCA 2004) (finding fundamental error where jury instructed on alternate theory for battery on law enforcement officer, where alternate theory was not charged); Braggs v. State, 789 So. 2d 1151, 1154 (Fla. 3d DCA 2001) (finding fundamental error where jury instructed on alternate theory not charged in the information).
Here, the jury was instructed on battery on a law enforcement officer by use of a deadly weapon, an alternate theory not charged in the information. Since the jury returned a general verdict of guilty as to that count, it is impossible to determine whether Appellant was convicted of a charged or uncharged offense. Because the trial court fundamentally erred by instructing the jury on the element of aggravated battery by use of a deadly weapon, where that element was not charged, we reverse and remand for a new trial on the offense of aggravated battery on a law enforcement officer. The judgment and sentence is affirmed in all other respects.
AFFIRMED in part, REVERSED in part, and REMANDED.
BARFIELD, WOLF, and HAWKES, JJ., concur.
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Isaiah Brown v. State, 41 So. 3d 259 (Fla. 4th DCA 2010)…s is so because under such circumstances it will ordinarily be “ ‘impossible to determine whether [the defendant] was convicted of a charged or uncharged offense,’ ” Cogbill v. State, 940 So. 2d 537, 539 (Fla. 1st DCA 2006) (quoting Debase v. State, 920 So. 2d 169, 170 (Fla. 1st DCA 2006)), and it is a due process violation to convict a defendant of a crime with which he was not charged, see Carswell v. State, 23 So. 3d 195, 198 (Fla. 4th DCA 2009). In Sanders v. State, 959 So. 2d 1232 (Fla. 2d DCA 2007), th…
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Jomolla v. State, 990 So. 2d 1234 (Fla. 3d DCA 2008)…y without specifying the basis for the conviction. Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005) (finding fundamental error where the jury was instructed on an alternative theory not charged in the information); see also Debose v. State, 920 So. 2d 169, 169 (Fla. 1st DCA 2006); [*1238] Braggs v. State, 789 So. 2d 1151, 1154 (Fla. 3d DCA 2001). In State v. Weaver, 957 So. 2d 586 (Fla.2007), the Florida Supreme Court clarified that a fundamental error occurs only in those trials where the uncharged…
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Cogbill v. State, 940 So. 2d 537 (Fla. 1st DCA 2006)…by manufacture, we conclude that instructing the jury that he could be convicted upon proof of either actual or constructive possession or manufacture, as that term was defined for the jury, did not constitute fundamental error. In Debose v. State, 920 So. 2d 169 (Fla. 1st DCA 2006), we reiterated the general rule that where an offense can be committed in more than one way, fundamental error occurs when the jury is instructed on an alternate theory not charged in the information and returns a general verdict…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Geronimo Vega v. State, 900 So. 2d 572 (Fla. 2d DCA 2004)
- Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005)
- Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)