KENDAL PIERRE COBB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kendal Cobb appeals his conviction for lewd act upon a child under a statute that was amended to contain only definitions rather than substantive crimes. Both parties concede the charge was based on a non-existent crime, and the court holds that because no lesser offenses were submitted to the jury, Cobb is entitled to discharge rather than retrial.
Discharge is the appropriate remedy. A retrial is appropriate only on lesser offenses that were instructed on at trial; where no lesser offenses were submitted to the jury at trial, the defendant must be discharged rather than retried.
[1] A conviction based on a nonexistent crime requires discharge when no lesser offenses were instructed upon at trial.
[2] A retrial is appropriate only on lesser offenses that were instructed on at trial when a conviction is based on a nonexistent crime.
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Join FLexlaw to unlock all legal intelligence“he information neither referenced a statute that establishes a crime, nor set forth the essential elements of any substantive crime”
Establishes the fundamental defect in the charging information
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Join FLexlaw to unlock all legal intelligenceKendal Cobb was convicted of lewd act upon a child under section 800.04(1), Florida Statutes (2012). The information charging him did not reference a …
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Kendal P. Cobb appeals his conviction of lewd act upon a child, which was alleged to be in violation of section 800:04(1), Florida Statutes (2012). He contends, and the State concedes, that the information neither referenced a statute that establishes a crime, nor set forth the essential elements of any substantive crime.1 The State also concedes that the error is fundamental. The parties differ only on the relief to which Mr. Cobb is entitled. The State argues that a new trial is appropriate, whereas Mr. Cobb argues that he is entitled to be discharged.
*582We conclude that discharge is appropriate. When a conviction is based on a nonexistent crime, a retrial is appropriate only on any lesser offenses instructed on at trial. See State v. Gibson, 682 So.2d 545, 546 (Fla.1996); see also State v. Brady, 685 So.2d 984 (Fla. 5th DCA 1997) (holding when defendant convicted of non-existent crime, remedy is retrial only on lesser offenses on which jury was instructed). Those lesser offenses not instructed on at trial cannot be the basis for a retrial. Gibson, 682 So.2d at 546. Here, no lesser offenses were submitted to the jury at trial. Hence, Mr. Cobb is entitled to discharge.
REVERSED and REMANDED.
BERGER and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Gibson, 682 So. 2d 545 (Fla. 1996)
- State v. Brady, 685 So. 2d 984 (Fla. 5th DCA 1997)