CHARLES GRAU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Grau was convicted of aggravated battery and kidnapping and sentenced to consecutive terms of 15 and 20 years plus probation. The appellate court reversed the aggravated battery conviction because the trial court erroneously instructed the jury on an uncharged alternative theory of the crime, requiring a new trial on that count.
The aggravated battery conviction must be reversed because the trial court fundamentally erred in instructing the jury on the uncharged alternative statutory theory, and the jury verdict demonstrates it convicted under that uncharged theory. The weapon and sentencing issues are rendered moot by the reversal. Other issues raised by the defendant are affirmed.
[1] Instructing a jury on an uncharged alternative theory of a crime constitutes fundamental error requiring reversal.
[2] A conviction based on a jury verdict finding guilt on an uncharged offense must be reversed.
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Join FLexlaw to unlock all legal intelligence“the lower court erroneously instructed the jury on the uncharged alternative theory of aggravated battery under section 784.045(l)(a)2., Florida Statutes, and the jury verdict shows that the jury found Grau guilty of that uncharged offense”
Establishes the fundamental error that requires reversal of the aggravated battery conviction
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Join FLexlaw to unlock all legal intelligenceGrau was charged with aggravated battery under Florida Statute 784.045(1)(a)1 and kidnapping. The trial court instructed the jury on an alternative th…
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Charles Grau appeals the judgment and sentence adjudging Grau guilty and sentencing him to consecutive sentences of fifteen years for Count I (aggravated battery) and twenty years for Count II (kidnapping), followed by five years of probation. Grau argues that: (1) the lower court fundamentally erred when it instructed the jury as to the uncharged alternative crime of aggravated battery; (2) the State failed to prove that Grau used a weapon to commit the aggravated battery offense; and (3) the lower court erred in reclassifying and sentencing Grau to the first-degree felony offense of aggravated battery with a weapon.
We conclude that the aggravated battery conviction must be reversed. The Amended Information clearly charged Grau with aggravated battery in violation of section 784.045(l)(a)l., Florida Statutes. *923However, the lower court erroneously instructed the jury on the uncharged alternative theory of aggravated battery under section 784.045(l)(a)2., Florida Statutes, and the jury verdict shows that the jury found Grau guilty of that uncharged offense. Pursuant to Reddick v. State, 56 So.3d 132 (Fla. 5th DCA 2011), this error constitutes fundamental error and requires reversal of the conviction for aggravated battery and remand for a new trial on that charge. The issue regarding use of a weapon is thus rendered moot. We must also reverse the sentence imposed for the aggravated battery conviction, rendering the reclassification and sentencing issue moot. As to the other issues raised by Grau, we affirm without further discussion.1
AFFIRMED in part, REVERSED in part, and REMANDED.
SAWAYA, COHEN and BERGER, JJ., concur.
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State v. Robinson, 123 So. 3d 679 (Fla. 5th DCA 2013)…mental error, necessitating a new trial. We agree with Appel-lee and reverse and remand for a new trial. The aggravated assault instruction was fundamentally erroneous because it was based on a theory not charged in the information. Grau v. State, 101 So. 3d 922 (Fla. 5th DCA 2012); Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999). Because of our conclusion on this issue, it is not necessary to address the State’s argument [*680] that Appellee invited error in the self-defense instruction. REVERSED AN…
Authorities Cited
- Dontay Reddick v. State, 56 So. 3d 132 (Fla. 5th DCA 2011)