Nuckles v. State

District Court of Appeal of Florida

Nuckles v. State

162 So. 3d 1146, 2015 Fla. App. LEXIS 5981, 2015 WL 1847015

CourtDistrict Court of Appeal of Florida

DecidedApril 23, 2015

DocketNo. 1D14-2036

StatusPublished

This text of 162 So. 3d 1146 (Nuckles v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nuckles v. State, 162 So. 3d 1146, 2015 Fla. App. LEXIS 5981, 2015 WL 1847015 (Fla. Ct. App. 2015).

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Opinion

ON CONCESSION OF ERROR

PER CURIAM.

After a jury trial, Donzell Nuckles was convicted of twelve counts. On appeal he challenges only one.¹ As to the one count (Count 5), he argues the State failed to introduce any evidence particular to that count. The State concedes the record shows a complete lack of evidence as to Count 5. After review of the record, the State’s concession is well taken.

The State also concedes such complete lack of evidence constitutes fundamental error. The State’s concession on this point is also appropriate. A total lack of evidence constitutes fundamental error because it reaches to the foundation of the case and denies a defendant due process. F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The evidence must be “totally insufficient as a matter of law to establish the commission of a crime” — a “complete failure.” Id.; see Hobson v. State, 908 So.2d 1162, 1164 (Fla. 1st DCA 2005) (explaining that “a conviction for an offense that did not take place constitutes fundamental reversible error”).

Accordingly, the State failed to introduce evidence sufficient to sustain Appellant’s conviction and sentence as to Count 5. We therefore REVERSE Appellant’s conviction as to that count and REMAND with instructions to vacate Appellant’s sentence as to Count 5 only.

ROBERTS, CLARK, and ROWE, JJ., concur.

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ON CONCESSION OF ERROR

PER CURIAM.

After a jury trial, Donzell Nuckles was convicted of twelve counts. On appeal he challenges only one.¹ As to the one count (Count 5), he argues the State failed to introduce any evidence particular to that count. The State concedes the record shows a complete lack of evidence as to Count 5. After review of the record, the State’s concession is well taken.

The State also concedes such complete lack of evidence constitutes fundamental error. The State’s concession on this point is also appropriate. A total lack of evidence constitutes fundamental error because it reaches to the foundation of the case and denies a defendant due process. F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The evidence must be “totally insufficient as a matter of law to establish the commission of a crime” — a “complete failure.” Id.; see Hobson v. State, 908 So.2d 1162, 1164 (Fla. 1st DCA 2005) (explaining that “a conviction for an offense that did not take place constitutes fundamental reversible error”).

Accordingly, the State failed to introduce evidence sufficient to sustain Appellant’s conviction and sentence as to Count 5. We therefore REVERSE Appellant’s conviction as to that count and REMAND with instructions to vacate Appellant’s sentence as to Count 5 only.

ROBERTS, CLARK, and ROWE, JJ., concur.

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Bluebook (online)

162 So. 3d 1146, 2015 Fla. App. LEXIS 5981, 2015 WL 1847015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nuckles-v-state-fladistctapp-2015.

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