FORREST EUGENE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a conviction for grand larceny where the defendant was not charged with that offense, holding that convicting and sentencing a defendant for an offense not charged violates due process.
A defendant cannot be adjudged guilty and sentenced for grand larceny when not legally charged with that offense or a crime of which grand larceny is a lesser included offense.
[1] A defendant cannot be convicted and sentenced for an offense unless that offense or a lesser included offense was charged in the information or indictment.
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellant was adjudicated guilty of and sentenced for an offense for which he was not charged. This is an absolute denial of due process.”
State's concession that the conviction violated due process because the defendant was not charged with the offense for which he was convicted.
Appellant Smith pleaded guilty and was convicted and sentenced for grand larceny, but the charging document did not allege the offense of grand larcen…
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PER CURIAM.
Appellant s sole point on appeal is :
“The lower court erred in accepting Appellant’s plea of guilty and adjudging him guilty and sentencing him for the offense of grand larceny on the ground that Appellant could not be adjudged guilty and sentenced for such offense without being legally charged with the commission of the offense of grand larceny.”
Appellee State, in its brief, answers as follows:
“This question is answered in the affirmative. Appellee agrees with the argument set forth in appellant’s very excellent and well-reasoned brief. Appellant was not charged with the offense of grand larceny and neither was he charged with a crime of which grand larceny is a lesser included offense. No separate information was filed against appellant nor even an amended information was filed charging him with the offense of grand larceny. And as the saying goes, the allegata does not meet the probata. It comes down to this: Appellant was adjudicated guilty of and sentenced for an offense for which he was not charged. This is an absolute denial of due process. Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736], 84 L.Ed. 1093 (1940).”
The judgment of conviction is reversed. Reversed.
RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.
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State v. DYE, 346 So. 2d 538 (Fla. 1977)…ege each of the essential elements of a crime to be valid. 17 Fla.Jur. Indictments & Informa-tions § 104 (1958). No essential element should be left to inference. Corn v. State, 332 So. 2d 4, 12 (Fla.1976) (Hatchett, J., dissenting). Smith v. State, 324 So. 2d 699 (Fla.1st DCA 1976); Evanco v. State, 318 So. 2d 535 (Fla.1st DCA 1975); Haley v. State, 315 So. 2d 525 (Fla.2d DCA 1975); Rodgers v. State, 325 So. 2d 48 (Fla.2d DCA 1975); Causey v. State, 307 So. 2d 197 (Fla.2d DCA 1975); Ashley v. State, 292 So.…
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Corn v. State, 332 So. 2d 4 (Fla. 1976)…me, “[n]o essential element . . . should be left to inference.” Id. § 29. Evanco v. State, 318 So. 2d 535 (Fla.App.1st Dist. 1975); Haley v. State, 315 So. 2d 525 (Fla.App.2d Dist. 1975). See Long v. State, 92 So. 2d 259 (Fla. 1957); Smith v. State, 324 So. 2d 699 (Fla.App.1st Dist. 1976); Rodgers v. State, 325 So. 2d 48 (Fla.App.2d Dist. 1975); Causey v. State, 307 So. 2d 197 (Fla.App.2d Dist. 1975); Priester v. State, 294 So. 2d 421 (Fla.App.4th Dist. 1974); Ashley v. State, 292 So. 2d 616 (Fla.App.2d Dist.…
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Aundra Akins v. State, 691 So. 2d 587 (Fla. 1st DCA 1997)…zens v. State, 649 So. 2d 322 (Fla. 1st DCA 1995)(reversing conviction and sentence for lewd and lascivious act because information failed to charge a crime and conviction for nonexistent offense is reversible fundamental error). See Smith v. State, 324 So. 2d 699, 700 (Fla. 1st DCA 1976). In the instant case appellant was charged by indictment, and Florida cases have long held that an indictment, unlike an information, cannot be amended, not even by a grand jury, to charge a different, similar, or new offen…
Authorities Cited
- Thornhill v. Alabama, 310 U.S. 88 (U.S. 1940)