Moore v. State

Full title: FREDERICK MOORE, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Oct 30, 1986

496 So. 2d 255 (Fla. Dist. Ct. App. 1986)

Opinion

Nos. 86-26, 86-295.

October 30, 1986.

Appeal from the Circuit Court, Osceola County, Thomas S. Kirk and Rom W. Powell, JJ.

Steve Jablon, Kissimmee, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Jim Easley, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a conviction and sentence in a drug case. Appellant was charged with unlawful sale of cocaine. The trial judge instructed the jury regarding unlawful delivery of cocaine, rather than sale, and the jury returned a verdict of guilty "as charged." Either the information and the verdict do not correlate with the jury instructions; or, the information does not correlate with the jury instructions and the verdict.

A jury is entitled to proper instructions on the law from the judge. A verdict which finds a person guilty of a crime with which the accused was not charged is a nullity. Alternatively, a verdict which is not in conformance with the jury instructions is defective. Either way this appellant was wrongfully convicted. We must reverse that conviction and remand the case for a new trial with proper jury instructions and verdict forms. The errors in the sentences for this crime and the probation violation are also matters which must be addressed anew below, so those sentences are reversed, as well.

REVERSED and REMANDED.

UPCHURCH, C.J., and SHARP, J., concur.