Wilson Verela v. the State of Florida

• Court: District Court of Appeal of Florida
• Decided: March 5, 2025
• Docket: 3D2024-0402
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 5, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0402 Lower Tribunal No. F22-19396 ________________

Wilson Verela, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ariel Rodriguez, Judge.

Carlos J. Martinez, Public Defender and Shannon Hemmendinger, Assistant Public Defender, for appellant.

James Uthmeier, Attorney General and Tayna Alexander and Lara E. Breslow, Assistant Attorneys General (Tampa), for appellee.

Before LINDSEY, GORDO and LOBREE, JJ.

GORDO, J. Wilson Verela (“Verela”) appeals from a final judgment of conviction

and sentence for aggravated battery with a deadly weapon, a permissive

lesser-included offense of attempted second degree murder, the crime with

which he was charged. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A);

9.140(b)(1)(A). For the reasons that follow, we reverse.

I.

Verela was charged by amended information with attempted second

degree murder. Specifically, the information charged that Verela did

“attempt to kill JUAN RAFAEL JIRON, a human being, by stabbing.” The

information did not allege the use of a deadly weapon.

At the charge conference, the State sought jury instructions on the

lesser-included offenses of attempted manslaughter and aggravated battery.

The trial court agreed and instructed the jury on attempted manslaughter and

aggravated battery with a deadly weapon, as proscribed by section

784.045(1)(a)(2), Florida Statutes. The court gave no instruction on

aggravated battery by reason of causing great bodily harm to the victim,

pursuant to section 784.045(1)(a)(1), Florida Statutes.

Verela was found guilty of aggravated battery with a deadly weapon

and sentenced to twenty-one (21) months’ imprisonment followed by six (6)

months’ probation. This appeal followed.

2 II.

On appeal, Verela argues the State’s charging document did not allege

the essential elements of aggravated battery with a deadly weapon, and he

cannot stand convicted of a crime which the State did not charge.

In Florida, “[l]esser-included offenses fall within two categories: (1)

category one necessary lesser-included offenses; and (2) category two

permissive lesser-included offenses.” Daniel v. State, 137 So. 3d 1181, 1183

(Fla. 3d DCA 2014). In order for the trial court to instruct the jury on a

category two permissive lesser-included offense, “the indictment or

information must allege all the statutory elements of the subject lesser

offense, and the evidence at trial must establish each of these elements.”

Jones v. State, 666 So. 2d 960, 963 (Fla. 3d DCA 1996) (citing Brown v.

State, 206 So. 2d 377 (Fla. 1968)).

The reason for these rules is very clear: to preserve a defendant’s right

to due process. “The purpose of an information is to inform the accused of

the charge(s) against him, so that the accused will have an opportunity to

prepare a defense.” Robinson v. State, 215 So. 3d 1262, 1271 (Fla. 1st DCA

2017). “An information must allege each of the essential elements of a crime

to be valid” and “[n]o essential element should be left to inference.” State v.

Dye, 346 So. 2d 538, 541 (Fla. 1977). “[D]ue process prohibits a defendant

3 from being convicted of a crime not charged in the information or indictment.”

Crain v. State, 894 So. 2d 59, 69 (Fla. 2004); see also Aaron v. State, 284

So. 2d 673, 677 (Fla. 1973) (“The right of persons accused of serious

offenses to know, before trial, the specific nature and detail of crimes they

are charged with committing is a basic right guaranteed by our Federal and

State Constitutions.”); Long v. State, 92 So. 2d 259, 260 (Fla. 1957)

(“[W]here an offense may be committed in various ways, the evidence must

establish it to have been committed in the manner charged in the

indictment.”); Lewis v. State, 53 So. 2d 707, 708 (Fla. 1951) (“No principle of

criminal law is better settled than that the State must prove the allegations

set up in the information or the indictment.”).

Aggravated battery, the requested lesser-included offense, is a

category two permissive lesser-included offense of attempted second

degree murder and is statutorily defined as follows:

A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

2. Uses a deadly weapon.

§ 784.045(1)(a), Fla. Stat. (emphases added).

4 As set forth in the statute, there are two ways the State can charge a

defendant with aggravated battery. It can allege the defendant: (1)

intentionally caused great bodily harm; or (2) used a deadly weapon in the

commission of a battery. “An instrument that will likely cause death or great

bodily harm when used in the ordinary and usual manner contemplated by

its design is a deadly weapon.” Michaud v. State, 47 So. 3d 374, 376 (Fla.

5th DCA 2010). “However, an object can also be found to be a deadly

weapon if used or threatened to be used in a way likely to produce death or

great bodily harm.” Id. “Whether an object is a deadly weapon is generally

a question of fact to be determined by the jury.” 1 Id.

Here, the amended information alleged only that Verela attempted to

kill the victim “by stabbing.” There was no allegation in the information that

the crime occurred through Verela’s use of a deadly weapon. The

1 In Florida, only a firearm has been held to be a deadly weapon as a matter of law. See Miller v. State, 613 So. 2d 530, 531 (Fla. 3d DCA 1993) (“A firearm is, by definition, a deadly weapon[.]”). In contrast, “[w]hile a knife is a weapon, it is not necessarily a deadly weapon.” Howard v. State, 698 So. 2d 923, 925 (Fla. 4th DCA 1997). Its use determines whether it falls within this category. See, e.g., Vincente v. State, 669 So. 2d 1119, 1120 (Fla. 3d DCA 1996) (screwdriver constituted deadly weapon where it was employed by defendant as a knife with which to stab victim); Coronado v. State, 654 So. 2d 1267, 1270 (Fla. 2d DCA 1995) (sticks used to repeatedly strike victims constituted deadly weapons); Fletcher v. State, 472 So. 2d 537, 539 (Fla. 5th DCA 1985) (razor blade held to victim’s throat during attempted robbery could be found to be deadly weapon).

5 information did not allege that Verela used a knife or any object whatsoever

in a way likely to produce death or great bodily harm, and it did not reference

section 775.087(1).2 In other words, the information did not assert, except

through inference, facts showing that Verela committed aggravated battery

by using a deadly weapon. 3

We are bound by established precedent that it is error to give an

instruction on a permissive lesser-included offense unless the accusatory

pleading specifically alleges every statutory element of that offense. See

2 The reclassification/enhancement statute. 3 While the dissent posits that charging an attempt to kill “by stabbing” places the defendant on notice of possible aggravated battery by reason of using a deadly weapon, one can think of many ways in which that is not true. For example, in a case where the defendant is alleged to have attempted to kill the victim by stabbing and the evidence at trial is that the defendant used a metal credit card, the words “by stabbing” alone do not place the defendant on notice of the deadly weapon theory of aggravated battery. The defendant may know from the evidence what object was used, however, the theory of the offense the State intends to rely on at trial is not readily apparent from the charging document itself. In such a case, the information would need to allege the use of a metal credit card, an object that is not inherently a deadly weapon, in a way likely to produce death or great bodily harm, such as by stabbing the victim in the neck with a deadly weapon, to-wit: a metal credit card, to properly apprise the defendant of the offense. See Watkins v. State, 632 So. 2d 184, 185 (Fla. 3d DCA 1994) (“An instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense.”) (emphasis added); Leeman v. State, 357 So. 2d 703, 705 (Fla. 1978) (“The purpose of an information is to fairly apprise [the] defendant of the offense with which he is charged.”).

6 Watkins, 632 So. 2d at 185. Because the amended information did not

sufficiently allege commission of aggravated battery by using a deadly

weapon as it did not allege Verela’s use of a knife,4 we find the trial court

erred in instructing the jury on this theory. We therefore reverse the

conviction and remand with instructions for the trial court to enter a verdict

for the lesser-included offense of simple battery and resentence Verela

accordingly. See Jaimes v. State, 51 So. 3d 445, 448 (Fla. 2010) (“It is a

fundamental principle of due process that a defendant may not be convicted

of a crime that has not been charged by the state.”); Von Deck, 607 So. 2d

at 1389 (“Florida law is well settled that the elements of an offense cannot

be established by mere inference. Moreover, we expressly have said that

an instruction cannot be given on a permissive lesser included offense

unless both the accusatory pleading and the evidence support the

commission of that offense.”); Andrews v. State, 679 So. 2d 859, 859 (Fla.

4 We agree with the dissent that there is certainly sufficient evidence in the record to support an instruction on aggravated battery with a deadly weapon in this case. The law is clear, however, that the accusatory pleading must also allege all the statutory elements of a permissive lesser-included offense. Our Florida Supreme Court has held that “the elements of an offense cannot be established by mere inference.” State v. Von Deck, 607 So. 2d 1388, 1389 (Fla. 1992). Where, as here, the information does not contain an allegation that an aggravated battery occurred, or that the defendant used a deadly weapon, it is error for a jury instruction to be given on that uncharged theory.

7 1st DCA 1996) (concluding that an information charging attempted first

degree murder by stabbing with a knife alleged aggravated battery by using

a deadly weapon but “[b]ecause the information did not sufficiently allege

commission of aggravated battery by causing great bodily harm, the trial

court erred in instructing the jury” on the great bodily harm theory of

aggravated battery) (emphasis added); Levesque v. State, 778 So. 2d 1049,

1050 (Fla. 4th DCA 2001) (“The information did not allege that Levesque

intentionally or knowingly caused great bodily harm. It is error to give a jury

instruction on a permissive lesser included offense unless the accusatory

pleading alleges all the elements of the lesser offense. Accordingly, the trial

court erred by improperly instructing the jury that Levesque could be found

guilty of aggravated battery.”); Jaimes, 51 So. 3d at 452 (“[W]hile the

information did not charge the form of aggravated battery on which the jury

based its conviction, the elements of simple battery were both supported by

the charging document and the proof at trial, and each element of the offense

was determined by the jury beyond a reasonable doubt. We may therefore

direct that Jaimes’s case be remanded to the trial court with instructions to

enter a verdict for the lesser included offense of simple battery.”).

Reversed and remanded with instructions.

LOBREE, J., concurs.

8 Verela v. State Case No. 3D24-0402

LINDSEY, J., dissenting.

I respectfully dissent.

The State’s Amended Information alleged that the Defendant, Wilson

Verela, did “attempt to kill JUAN RAFAEL JIRON, a human being, by

stabbing.” (Emphasis added). It takes no “inference,” Majority Op. at 6, to

conclude that Verela was alleged to have committed aggravated battery by

using a deadly weapon. The words “kill” and “stabbing” provide all the

express language needed to charge that permissive lesser-included offense.

The phrase “by an act imminently dangerous to another” further buttresses

the legal sufficiency of the allegation.

“[A]n instruction cannot be given on a permissive lesser included

offense unless both the accusatory pleading and the evidence support the

commission of that offense.” State v. Von Deck, 607 So. 2d 1388, 1389 (Fla.

1992). Here, the sufficiency of the evidence is undisputed, and the charging

document sufficiently “supported” the commission of aggravated battery with

a deadly weapon. Accordingly, Verela’s conviction should be affirmed.

This Court has upheld convictions in the face of analogous challenges

after Von Deck on multiple occasions—and for good reason. In Washington

v. State, 912 So. 2d 344 (Fla. 3d DCA 2005), the defendant was originally

9 charged with second-degree murder but was convicted on the lesser-

included offense of attempted aggravated battery. On appeal, Washington

argued that the information failed to allege the “great bodily harm” element

of attempted aggravated battery. Id. at 346. This Court affirmed, holding

that the instruction was proper because the information sufficiently alleged

the elements of the “deadly weapon” theory: “the information . . . did allege

that [defendant] discharged a firearm. Thus, the charging document provided

a basis for the trial court’s instruction on attempted aggravated battery.” Id.

In Lester v. State, 25 So. 3d 623 (Fla. 3d DCA 2009), the defendant

was convicted of aggravated battery after the information charged him with

manslaughter. On appeal, he argued that the information failed to include

the “intent to cause great bodily harm” element of aggravated battery. Id. at

624. This Court affirmed: “The information . . . alleged that the defendant

killed the victim by punching him in the face. Killing the victim by punching

him in the face sufficiently alleges great bodily harm.” Id.

This case is analogous to Washington and Lester. The Information

alleged that Verela did “by an act imminently dangerous . . . attempt to kill

JUAN RAFAEL JIRON, a human being, by stabbing.”

The Oxford English Dictionary defines “stab” as “to wound (often to kill)

with a thrust of a pointed weapon (chiefly, with a short weapon, as a dagger).”

10 10 The Oxford English Dictionary 752 (1st ed. 1933). Merriam-Webster’s

Collegiate Dictionary defines “stab” as “to wound or pierce by the thrust of a

pointed weapon.” Merriam-Webster’s Collegiate Dictionary 1142 (10th ed.

1999). The Cambridge English Dictionary online defines “stab” as “to injure

someone with a sharp pointed object such as a knife.” Stab, Cambridge

English Dictionary, www.dictionary.cambridge.org/us/dictionary/english/stab

(last visited March 3, 2025).

The Oxford English Dictionary defines “kill” as “to put to death; to

deprive of life; to slaughter. In early use implying personal agency and use

of a weapon; later, extended to any means or cause which puts an end to

life, as an accident, over-work, grief, drink, a disease, etc.” 5 The Oxford

English Dictionary 692 (1st ed. 1933). According to Merriam-Webster, “kill”

is “to deprive of life.” Merriam-Webster’s Collegiate Dictionary 642 (10th ed.

1999). And the Cambridge English Dictionary defines “kill” as “to cause

someone or something to die.” Kill, Cambridge English Dictionary,

www.dictionary.cambridge.org/us/dictionary/english/kill (last visited March 3,

2025). Thus, the words “kill” and “stabbing” facially and expressly support

committing battery through use of a deadly weapon.

Verela’s strongest support comes from Jaimes v. State, 51 So. 3d 445

(Fla. 2010). In Jaimes, the defendant was charged with aggravated battery

11 by an information that explicitly only charged the “deadly weapon” theory and

made no mention of “great bodily harm.” Id. at 447. The trial court

nevertheless instructed the jury on both theories and provided it “a verdict

form which allowed it to specifically choose between the two forms of

aggravated battery.” Id. The jury found Jaimes guilty of aggravated battery

by great bodily harm, not deadly weapon. The Florida Supreme Court

reversed his conviction, holding that he could not be convicted of the

uncharged version of the offense. Id. at 451. However, Jaimes is

distinguishable. The information in that case did not allege the “great bodily

harm” element in any way. Here, as explained above, the language in the

Information sufficiently alleged the use of a deadly weapon by alleging that

Verela engaged in an imminently dangerous act of attempting to kill by

stabbing a human being.

The majority also cites Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA

1996) and Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001). It is

well-settled that “as between District Courts of Appeal, a sister district’s

opinion is merely persuasive.” Pardo v. State, 596 So. 2d 665, 667 (Fla.

1992) (quoting State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA 1976)).

Moreover, Andrews and Levesque are not persuasive on our facts. In

Andrews, the First District held that the information alleging attempted

12 murder by stabbing with a knife did sufficiently allege aggravated battery with

a deadly weapon, reversing only due to concerns about the “great bodily

harm” instruction. 679 So. 2d at 859. Indeed, Levesque directly contradicts

Lester, the controlling precedent in our District. 1 What unites Andrews,

Levesque, and Jaimes is that none is both binding and on point. All three

found error in the “great bodily harm” instruction, not the “deadly weapon”

instruction. In fact, Andrews and Jaimes both found the deadly weapon

instruction to be proper. Of the three, only the distinguishable Jaimes is

binding on this Court.

Accordingly, I would affirm the conviction and sentence.

1 In Levesque, the Fourth District held that the information, which "charged Levesque with second degree murder by striking or kicking the victim in the head,” did not sufficiently allege great bodily harm. 778 So. 2d at 1050. In Lester, this Court held: “The information specifically alleged that the defendant killed the victim by punching him in the face. An allegation that the defendant killed the victim sufficiently alleges great bodily harm for purposes of the aggravated battery statute. For that reason, there was no error . . . .” 25 So. 3d at 625.