EFRAM JARAMILLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Convictions for aggravated assault with a firearm must be reversed because the charging document failed to allege all essential elements of the crime.
The defendant was charged with attempted first-degree murder, but convicted of aggravated assault with a firearm after a bench trial. The charging doc…
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PARKER, Judge.
Efram Jaramillo appeals his three convictions for aggravated assault with a firearm. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After reviewing the record in accordance with our obligation under State v. Causey, 503 So. 2d 321 (Fla.1987), we directed the parties to file supplemental briefs addressing the issue of whether Jaramillo’s convictions must be reversed because the charging document failed to allege all of the essential elements of aggravated assault with a firearm. The parties filed supplemental briefs, and the state conceded error. The state filed an amended information charging Jaramillo with three counts of attempted first-degree murder. After a bench trial the court found Jaramillo guilty of three counts of aggravated assault with a firearm.
A conviction on a charge not contained in the charging document is a denial of due process. State v. Gray, 435 So. 2d 816 (Fla.1983). The information in this case did not allege the element that the victim had a well-founded fear of imminent violence. That element is essential to support a conviction for aggravated assault with a firearm. State v. Roberts, 616 So. 2d 79 (Fla. 2d DCA 1993). Because the information failed to allege all of the essential elements of the crime for which he was convicted, Jaramillo’s convictions for aggravated assault with a firearm must be reversed. See Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995). The state cannot retry Jaramillo for attempted first-degree murder; however, the state can file an amended information and proceed against Jaramillo for aggravated assault with a firearm without violating double jeopardy. See Von Deck v. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993).
Reversed and remanded.
DANAHY, A.C.J., and BLUE, J., concur.
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B.S.W. v. State, 668 So. 2d 1075 (Fla. 2d DCA 1996)…e of robbery. See Fla.Std. Jury Instr. (Crim) 295. For the trial court to convict upon proper proof of a Category 2 lesser-included crime, the allegations of the charging document must also contain the elements of such crime. See Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995); Gay v. State, 432 So. 2d 602, 604 (Fla. 2d DCA 1983). Because the petition in this case did not contain the elements of the crime of battery, the trial court erred in convicting the appellant of that crime. We reverse the convi…
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Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002)…ict with those decisions. AFFIRMED. GRIFFIN, J., concurs. HARRIS, J., concurs specially with opinion. . Cases such as K.H. v. State, 763 So. 2d 1187 (Fla. 4th DCA 2000), Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995), Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995), and Mauldin v. State, 696 So. 2d 801 (Fla. 2d DCA 1997), which hold that conviction for a lesser offense not within the ambit of the charging document is fundamental error, are distinguishable. Those cases, relied upon by the cou…
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Mauldin v. State, 696 So. 2d 801 (Fla. 2d DCA 1997)…Lesser Included Of [*802] fenses; B.S.W. v. State, 668 So. 2d 1075 (Fla. 2d DCA 1996). We, accordingly, reverse and remand. On remand, the state may file an amended information and retry appellant on the offense of battery. See Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995); Velasquez. See also Von Deck v. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993). PARKER, J., and DAKAN, STEPHEN L., Associate Judge, concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- State v. Gray, 435 So. 2d 816 (Fla. 1983)
- Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995)
- von Deck v. Hon. Kerry I. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993)
- Norman v. State, 616 So. 2d 79 (Fla. 4th DCA 1993)
- State v. Roberts, 616 So. 2d 79 (Fla. 2d DCA 1993)