Akins v. State, 96-300

• Decision Date: 16 April 1997
• Docket Number: No. 96-300,96-300
• Citation: 691 So.2d 587
• Parties: 22 Fla. L. Weekly D971 Aundra AKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 587

691 So.2d 587

22 Fla. L. Weekly D971

Aundra AKINS, Appellant, v. STATE of Florida, Appellee.

No. 96-300.

District Court of Appeal of Florida,

First District.

April 16, 1997.

Steven L. Seliger, of Garcia and Seliger, Quincy, for Appellant.

Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant raises two issues in this appeal following his guilty plea. We affirm in regard to the second issue without discussion. As explained below, we reverse on the first issue.

Appellant was charged by superseding indictment with first degree murder, attempted first degree felony murder, two counts of attempted robbery with a firearm, and one count of shooting into an occupied vehicle. On January 23, 1995, appellant entered a negotiated plea of guilty to the lesser included offense of second-degree murder on Count I and guilty as charged on Count II, and the State agreed to nol pros Counts III, IV, and V and recommend that appellant's sentence not exceed 40 years on each count with 3-year minimum mandatories on each count concurrent. After the guilty plea was taken but before the sentencing hearing was held on November 14, 1995, the Florida Supreme Court decided State v. Gray, 654 So.2d 552 (Fla.1995), which invalidated the crime of attempted felony murder. At the sentencing hearing, appellant and the state specifically addressed the fact that appellant had pled guilty to first-degree attempted felony murder by jointly stipulating to a substitution of attempted first-degree premeditated murder on Count II for purposes of sentencing. In the instant case, appellant argues that this stipulation was ineffectual to amend the indictment and that appellant thus was convicted of the non-existent crime of attempted felony murder. We agree.

In State v. Gray, 435 So.2d 816 (Fla.1983), the court ruled that an indictment or information failing to allege an essential element of a crime did not charge a crime and that this constitutes both denial of due process and fundamental error.

The state is correct in arguing that ordinarily the test for granting relief based on a defect in the charging document is actual prejudice to the fairness of the trial. However, a conviction on a charge not made by the indictment or information is a denial of due process of law. If the charging instrument completely fails to charge a crime, therefore, a conviction thereon violates due process. Where an indictment or information wholly omits to allege one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state.

Id. at 818 (citations omitted). Accord Jozens v. State, 649 So.2d 322 (Fla. 1st DCA 1995)(reversing conviction and sentence for lewd and lascivious act because information failed to charge a crime and conviction for nonexistent offense is reversible fundamental error). See Smith v. State, 324 So.2d 699, 700 (Fla. 1st DCA 1976).

In the instant case appellant was charged by indictment, and Florida cases have long held that an indictment, unlike an information, cannot be amended, not even by a grand jury, to charge a different, similar, or new offense. Smith v. State, 424 So.2d 726, 729 (Fla.1983)("[A] grand jury has no authority to amend an indictment to charge an additional or different offense," but "may file a completely new indictment regarding the same alleged criminal actions, even though a prior indictment is pending."), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983). Amending an indictment by stipulation to charge attempted premeditated murder as was done in the instant case, therefore, is not...