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763 So. 2d 1187

K.H. v. State

District Court of Appeal of Florida

Decided January 26, 2000

District Court of Appeal of Florida · decided 2000-01-26

Cited by 7 later decisions — most recently August 2017

7 state decisions

Key passage — most relied on by later courts

“To be convicted of any lesser-included offense, absent a waiver, the information charging the greater offense must allege the elements of the lesser offense. See, e.g., Gay v. State, 432 So.2d 602, 604 (Fla. 2d DCA 1983). Here, the information did not allege that Appellant committed an act creating a well-founded fear that violence to the victim was imminent, as required by section 784.021, Florida Statutes. Conviction under these circumstances constitutes fundamental error. See Ray v. State, 403 So.2d 956 (Fla.1981), called into doubt on other grounds, Greene v. State, 714 So.2d 554 (Fla. 2d DCA 1998).”

quoted by 1 later decision, including Range v. State

“[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.”

quoted by 1 later decision, including Waymon Kirkland v. State of Florida

Relies on 403 So. 2d 956 - Ray v. State · 440 So. 2d 392 - Torrence v. State · 432 So. 2d 602 - Gay v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2000-01-26

View the full empirical analysis of this case →

STONE, J.

¶1Appellant was tried in a juvenile proceeding on a charge of aggravated battery. At the conclusion of the hearing, the trial court found Appellant guilty of aggravated assault. Aggravated assault, however, is not a lesser-included offense of aggravated battery. See Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983)(en banc).

¶2To be convicted of any lesser-included offense, absent a waiver, the information charging the greater offense must allege the elements of the lesser offense. See, e.g., Gay v. State, 432 So.2d 602, 604 (Fla. 2d DCA 1983). Here, the information did not allege that Appellant committed an act creating a well-founded fear that violence to the victim was imminent, as required by section 784.021, Florida Statutes. Conviction under these circumstances constitutes fundamental error. See Ray v. State, 403 So.2d 956 (Fla.1981), called into doubt on other grounds, Greene v. State, 714 So.2d 554 (Fla. 2d DCA 1998).

¶3We recognize that, notwithstanding this general rule, such an error may be waived where there is no objection raised and defense counsel either requests the improper charge or relies on that charge as evidenced by argument to the jury. See Ray, 403 So.2d at 961. Here, significantly, Appellant played no role in the trial court’s decision to convict on the uncharged offense, and it was not incumbent on Appellant to anticipate the court’s decision. We, therefore, reverse the conviction.1

DELL and TAYLOR, JJ., concur.

¶4. We note that Appellant recognizes that our opinion does not preclude the state from filing a new information charging Appellant with aggravated assault, if it so elects. See Gay, 432 So.2d at 604.

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