Opinion
No. 5D11–457.
2012-11-30
Charles GRAU, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Charles Grau appeals the judgment and sentence adjudging Grau guilty and sentencing him to consecutive sentences of fifteen years for Count I (aggravated battery) and twenty years for Count II (kidnapping), followed by five years of probation. Grau argues that: (1) the lower court fundamentally erred when it instructed the jury as to the uncharged alternative crime of aggravated battery; (2) the State failed to prove that Grau used a weapon to commit the aggravated battery offense; and (3) the lower court erred in reclassifying and sentencing Grau to the first-degree felony offense of aggravated battery with a weapon.
We conclude that the aggravated battery conviction must be reversed. The Amended Information clearly charged Grau with aggravated battery in violation of section 784.045(1)(a) 1., Florida Statutes. However, the lower court erroneously instructed the jury on the uncharged alternative theory of aggravated battery under section 784.045(1)(a) 2., Florida Statutes, and the jury verdict shows that the jury found Grau guilty of that uncharged offense. Pursuant to Reddick v. State, 56 So.3d 132 (Fla. 5th DCA 2011), this error constitutes fundamental error and requires reversal of the conviction for aggravated battery and remand for a new trial on that charge. The issue regarding use of a weapon is thus rendered moot. We must also reverse the sentence imposed for the aggravated battery conviction, rendering the reclassification and sentencing issue moot. As to the other issues raised by Grau, we affirm without further discussion.
Those issues are: (1) the lower court erred when it denied Grau's motion for continuance; (2) the lower court erred by denying Grau's peremptory challenge to a prospective juror; (3) the lower court fundamentally erred when it instructed the jury on the kidnapping charge; and (4) the lower court erred in denying Grau's motion to correct an alleged sentencing error relating to the alleged consideration by the lower court of past incidents of misconduct.
AFFIRMED in part, REVERSED in part, and REMANDED.
SAWAYA, COHEN and BERGER, JJ., concur.