STATE OF FLORIDA, APPELLANT,
v.
D.C., A CHILD, APPELLEE
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The court held that adjudicating a juvenile delinquent for an uncharged offense, which was not a lesser included offense of the original charge, constitutes fundamental error requiring dismissal.
A juvenile was charged with possession of a firearm on school property. The trial court found the proof insufficient for that charge but found the juv…
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In this juvenile delinquency matter, D.C. was charged by petition for delinquency with possession of a firearm on school property pursuant to section 790.115(2), Florida Statutes (2007). 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 carrying a concealed firearm pursuant to section 790.01(2).1 The court mistakenly believed the crime of carrying a concealed firearm was a lesser included offense of the original charge. See James v. State, 16. So.3d 322, 326 (Fla. 4th DCA 2009) (“[T]he definition of ‘possession’ is different from and broader than the definition of ‘carrying.’ ”); § 790.115(2)(a), Fla. Stat. (“A person shall not possess any firearm.”); § 790.01(2), Fla. Stat. (“A person who carries a concealed firearm ... commits a felony.”).
The adjudication of delinquency for a crime not charged constitutes funda*1168mental error. See S.J. v. State, 831 So.2d 1288 (Fla. 5th DCA 2002).2
Because the trial court found that the allegations in the petition were not sustained and because the trial judge found D.C. guilty of a lesser included offense that was, in fact, not a lesser included offense of the original charge, the law of this case requires that the matter be dismissed. See Fla. R. Juv. P. 8.110(f).
Reversed and remanded for further proceedings consistent with this opinion.
MAY and DAMOORGIAN, JJ., concur.
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Jones v. State, 74 So. 3d 118 (Fla. 1st DCA 2011)…461 (1938) (“The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” (footnote omitted)); State v. D.C., 29 So. 3d 1167, 1168 n. 2 (Fla. 4th DCA 2010) (“[A]n appellate court may address sua sponte an error which is apparent on the face of the record.”). Conflict-free counsel should have been appointed. See Gunn v. State, 841 So. 2d 629, 631 (Fla. 2d DCA 2003) (holdi…
Authorities Cited
- United Servs. Auto. Ass'n v. Stowell, 398 So. 2d 998 (Fla. 5th DCA 1981)
- Goss v. State, 398 So. 2d 998 (Fla. 5th DCA 1981)
- S.J. v. State, 831 So. 2d 1288 (Fla. 5th DCA 2002)