Home/District Court of Appeal of Florida/O'BRYAN v. State

O'BRYAN v. State

692 So. 2d 290, 1997 WL 205247
CourtDistrict Court of Appeal of Florida
DecidedApril 28, 1997
Docket96-1217
StatusPublished
Cited by14 cases

This text of 692 So. 2d 290 (O'BRYAN 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
O'BRYAN v. State, 692 So. 2d 290, 1997 WL 205247 (Fla. Ct. App. 1997).

Opinion

692 So.2d 290 (1997)

Mark Anthony O'BRYAN, Appellant,
v.
STATE of Florida, Appellee.

No. 96-1217.

District Court of Appeal of Florida, First District.

April 28, 1997.

Nancy A. Daniels, Public Defender; David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Amelia L. Beisner, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant raises two issues in this direct appeal. We affirm on the first issue without further discussion, but we reverse for new trial on the second issue.

Appellant was charged in a single count with lewd and lascivious assault in violation of section 800.04(1), Florida Statutes (1993), or knowingly committing a lewd or lascivious act in the presence of a child under sixteen years of age in violation of section 800.04(4). At trial, however, the court instructed the jury without objection on the alternatives of sections 800.04(1) and 800.04(2). The jury found him guilty as charged. Appellant contends that the court's instruction to the jury on a crime not charged is fundamental error. We agree.

*291 Although one of the crimes on which the court instructed conformed to the information, the court failed to instruct on the information's alternative offense and instead instructed on an uncharged offense. The jury's general verdict makes it impossible to determine of which offense appellant was found guilty. See Owens v. State, 593 So.2d 1113 (Fla. 1st DCA 1992). Because the court instructed the jury on a crime not charged, the resulting verdict is a nullity. Gaines v. State, 652 So.2d 458 (Fla. 4th DCA 1995); Moore v. State, 496 So.2d 255, 256 (Fla. 5th DCA 1986)("A verdict which finds a person guilty of a crime with which the accused was not charged is a nullity."). Accordingly, the cause is remanded for new trial.

MINER, ALLEN and PADOVANO, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Weaver v. State
916 So. 2d 895 (District Court of Appeal of Florida, 2005)
Eaton v. State
908 So. 2d 1164 (District Court of Appeal of Florida, 2005)
Concepcion v. State
857 So. 2d 299 (District Court of Appeal of Florida, 2003)
Griffis v. State
848 So. 2d 422 (District Court of Appeal of Florida, 2003)
Jefferies v. State
849 So. 2d 401 (District Court of Appeal of Florida, 2003)
Wise v. State
833 So. 2d 882 (District Court of Appeal of Florida, 2003)
Dixon v. State
823 So. 2d 792 (District Court of Appeal of Florida, 2001)
D.R. v. State
790 So. 2d 1242 (District Court of Appeal of Florida, 2001)
Torres v. State
779 So. 2d 393 (District Court of Appeal of Florida, 2000)
Abbate v. State
745 So. 2d 409 (District Court of Appeal of Florida, 1999)
Hendricks v. State
744 So. 2d 542 (District Court of Appeal of Florida, 1999)
Timot v. State
738 So. 2d 387 (District Court of Appeal of Florida, 1999)
Zwick v. State
730 So. 2d 759 (District Court of Appeal of Florida, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
692 So. 2d 290, 1997 WL 205247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obryan-v-state-fladistctapp-1997.