MATTHEW FALSTREAU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Matthew Falstreau was convicted by jury of breaking and entering with intent to commit rape and aggravated assault as a lesser included offense of rape. The court held that aggravated assault was fundamental error as a conviction because it was not alleged in the indictment and did not fall within the permissible lesser-included-offense categories under Florida law.
The court held that conviction of aggravated assault was fundamental error. A defendant may be convicted of a lesser included offense only if it falls within one of four categories: (1) a lesser degree of the crime charged, (2) an attempt to commit the crime charged, (3) necessarily included in the crime charged, or (4) included within the allegations of the indictment and shown by the proofs. Aggravated assault fell into none of these categories relative to the rape charge and was not alleged in the indictment.
[1] A conviction of a crime not charged and not a lesser included offense, attempt, or necessarily included offense is fundamental error.
[2] A defendant may be convicted of a crime necessarily included in the crime charged or included within the allegations of the accusatory pleading and shown by the proofs.
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Join FLexlaw to unlock all legal intelligence“A conviction of a crime with which the defendant was not charged and which does not fall within one of the four categories suggested by the abovementioned rules has been held to be fundamental error.”
Establishes the controlling legal standard that convictions must fit within enumerated categories or be fundamental error
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Join FLexlaw to unlock all legal intelligenceFalstreau was charged by indictment with breaking and entering a dwelling house with intent to commit rape (count one) and rape (count two). At trial,…
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PER CURIAM.
Appellant-defendant, Matthew Falstreau, was charged by indictment, in count one, with breaking and entering of a dwelling house with the intent to commit a felony, to-wit: rape, and in count two, with rape. Trial was by jury. At the conclusion of the evidence, the trial court instructed the jury with reference to count two of the indictment that they, the jury, could find the appellant guilty of aggravated assault, if the evidence so warranted, as such crime was a lesser included offense of the crime of rape. No objection to this instruction was made by appellant either at the time the instruction was given or any time thereafter. The jury returned its verdict finding appellant guilty of breaking and entering of a dwelling house with the intent to commit a felony, to-wit: rape, as alleged in count one of the indictment and aggravated assault as a lesser included offense of rape as alleged in count two of the indictment. The trial court then adjudged defendant guilty and sentenced him to a term of years in the state prison under count one of the indictment.
Defendant was also adjudged guilty under count two of the indictment. Imposition of sentence, however, was withheld under count two with the defendant placed on probation for a term of years. This appeal then followed.
Appellant now contends that it was fundamental error for the trial court to ad judge him guilty of aggravated assault under count two of the indictment. We agree.
Upon proper proof a defendant may be convicted of the crime with which he was charged in the accusatory pleading. Rules 3.490 and 3.510 Fla.RCrP (1975) further provide that a defendant under a criminal charge may be convicted of any crime which is (1) a lesser degree of the crime charged, (2) an attempt to commit the crime charged, (3) necessarily included in the crime charged, or (4) included within the allegations of the accusatory pleading and shown by the proofs. A conviction of a crime with which the defendant was not charged and which does not fall within one of the four categories suggested by the abovementioned rules has been held to be fundamental error. Haley v. State, 315 So. 2d 525 (Fla.App.1975); O’Neal v. State, 308 So. 2d 569 (Fla.App.1975); Causey v. State, 307 So. 2d 197 (Fla.App.1975); Priester v. State, 294 So. 2d 421 (Fla.App.1974); Johnson v. State, 226 So. 2d 884 (Fla.App.1969).
Count two of the indictment in the instant case alleged that the defendant “. . . did unlawfully ravish and carnally know [the victim], a person of the age of more than eleven (11) years, by force and against her will in violation of Florida Statute 794.01.” The crime for which the defendant was convicted was aggravated assault, i. e., assault with a deadly weapon. Clearly the crime of aggravated assault does not fall within the first three categories suggested by Rules 3.490 and 3.-510, Fla.RCrP. With reference to the fourth category, an examination of the indictment as set forth above reveals that the elements of aggravated assault are not alleged therein. Therefore, we conclude that the trial court erred in adjudging the defendant guilty of aggravated assault and entering the order of probation under count two of the indictment.
As to the judgment and imposition of sentence under count one of the indictment, no error has been demonstrated.
Accordingly, the judgment and sentence entered under count one of the indictment is affirmed.
The order of probation entered under count two of the indictment is vacated and set aside, and the cause remanded to the trial court with directions to discharge the defendant from count two of the indictment.
CROSS and DOWNEY, JJ., and SCHULZ, GEORGE E., Associate Judge, concur.
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…trict cases are unanimous in characterizing faulty instructions on lesser included offenses as fundamental error regardless of the defendant’s failure to object.4 The Fourth District Court of Appeal reached the same conclusion in Falstreau v. State, 326 So. 2d 194 (Fla. 4th DCA 1976), and Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974). All of these cases speak of fundamental error; in other eases, erroneous lesser included instructions have been found to be reversible, but not fundamental, error. See S…
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Odell Aaron Hicks v. State, 362 So. 2d 730 (Fla. 3d DCA 1978)…sexual battery with the use of threats of force of serious personal injury, constitutes a conviction for a crime not [*733] charged; accordingly, for that reason, we reverse. See Minor v. State, 359 So. 2d 30 (Fla. 2d DCA 1976); Falstreau v. State, 326 So. 2d 194 (Fla. 4th DCA 1976); and Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974). As stated above, appellant’s point one, two, three, and four on appeal are affirmed. However, in regard to appellant’s fifth point on appeal, because of the improper in…
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Grange v. State, 371 So. 2d 723 (Fla. 1st DCA 1979)…ser: use of physical force not likely to cause serious personal injury. Appellant’s conviction under count one, not being lesser included to the greater, is vacated with instructions that he be discharged as to that offense. See Falstreau v. State, 326 So. 2d 194 (Fla. 4th DCA 1976); Smith v. State, 365 So. 2d 405 (Fla. 3d DCA 1978). As to count two, the cause is remanded to the trial court for the imposition of a sentence no greater than the maximum permitted for a felony of the second degree. Since it appe…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975)
- Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969)
- Causey v. State, 307 So. 2d 197 (Fla. 2d DCA 1975)
- O'Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975)
- Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974)