STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
DONALD E. ROBINSON, APPELLEE/CROSS-APPELLANT
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The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm. Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental 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 *680that Appellee invited error in the self-defense instruction.
REVERSED AND REMANDED.
TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999)
- Grau v. State, 101 So. 3d 922 (Fla. 5th DCA 2012)