State v. Robinson

District Court of Appeal of Florida

State v. Robinson

123 So. 3d 679, 2013 WL 5658348, 2013 Fla. App. LEXIS 16590

CourtDistrict Court of Appeal of Florida

DecidedOctober 18, 2013

DocketNos. 5D12-178, 5D12-536

StatusPublished

This text of 123 So. 3d 679 (State v. Robinson) 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

State v. Robinson, 123 So. 3d 679, 2013 WL 5658348, 2013 Fla. App. LEXIS 16590 (Fla. Ct. App. 2013).

Pincite

Opinion

PER CURIAM.

The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm. Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental error, necessitating a new trial. We agree with Appel-lee and reverse and remand for a new trial.

The aggravated assault instruction was fundamentally erroneous because it was based on a theory not charged in the information. Grau v. State, 101 So.3d 922 (Fla. 5th DCA 2012); Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999). Because of our conclusion on this issue, it is not necessary to address the State’s argument [680]*680that Appellee invited error in the self-defense instruction.

REVERSED AND REMANDED.

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.

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