Deleon v. State

• Decision Date: 03 August 2011
• Docket Number: No. 2D09–5740.,2D09–5740.
• Citation: 66 So.3d 391
• Parties: Nelson Gabriel DELEON, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

66 So.3d 391

Nelson Gabriel DELEON, Appellant,

v.STATE of Florida, Appellee.

No. 2D09–5740.

District Court of Appeal of Florida, Second District.

Aug. 3, 2011.

James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.MORRIS, Judge.

Nelson Gabriel Deleon appeals his judgments and sentences for carjacking with a deadly weapon and resisting an officer without violence. He raises three issues on appeal. He first challenges the trial court's denial of his motion to suppress the victim's out-of-court identification of him. We conclude, without further discussion, that the trial court properly denied his motion to suppress. However, as explained below, Deleon's second and third arguments have merit, and we reverse his conviction and sentence for carjacking with a deadly weapon. We affirm his conviction and sentence for resisting an officer without violence.

Deleon was charged with carjacking with a firearm, resisting an officer without violence, and possession of a firearm by a convicted felon. The trial on the last count was severed from the trial on the first two counts. After a trial, the jury returned a verdict of guilty for the offense of carjacking with a deadly weapon and resisting an officer without violence. Deleon was sentenced as a prison releasee reoffender (PRR) to life in prison on the carjacking count and to time served on the resisting count.

In his second point on appeal, Deleon argues that the trial court erred in instructing the jury on the offense of carjacking with a deadly weapon because the specific offense of carjacking with a deadly weapon was not charged in the information. He contends that the information alleged only that he possessed a firearm during the offense and that the jury could not therefore find that he possessed a deadly weapon. In addition, he suggests that carjacking with a deadly weapon is not a lesser-included offense of carjacking with a firearm.

The relevant statute provides as follows:

(1) “Carjacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

(2)(a) If in the course of committing the carjacking the offender carried a firearm or other deadly weapon, then the carjacking is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If in the course of committing the carjacking the offender carried no firearm, deadly weapon, or other weapon, then the carjacking is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 812.133, Fla. Stat. (2008) (emphasis added). Here, the information alleged that Deleon possessed a firearm during the offense, citing section 812.133, but the jury was instructed that it could find him guilty of carjacking with a deadly weapon as a lesser-included offense. At the charge conference, defense counsel objected to the jury's being instructed on the offense of carjacking with a deadly weapon. The jury rejected the option of carjacking with a firearm and instead found that Deleon committed carjacking with a deadly weapon. After trial, Deleon filed a motion for new trial, arguing that the jury was improperly instructed on carjacking with a deadly weapon because the element of deadly weapon was not charged in the information and because it is not a lesser-included offense of carjacking with a firearm.

“A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same penalty.” Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999). “[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.” Long v. State, 92 So.2d 259, 260 (Fla.1957).

In Jaimes v. State, 51 So.3d 445, 447 (Fla.2010), the defendant was charged with aggravated battery with a deadly weapon but the jury was instructed that it could also find him guilty on the theory of aggravated battery causing great bodily harm. He was found guilty of the uncharged theory of aggravated battery causing great bodily harm. Noting that “[i]t 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,” id. at 448, the supreme court held that the improper jury instruction clearly had an effect on the jury's verdict as evidenced by the jury's special verdict form, id. at 451. The court recognized that “ ‘one charged with a crime cannot be indicted for one offense and convicted or sentenced for another, even though the offenses are closely related and may be of [the] same general character,’ ” id. at 451 (alteration in original) (quoting Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957)), and held that “[b]ecause Jaimes was convicted of an offense based on elements that were never charged,” fundamental error was committed, id.

In Sanders v. State, 959 So.2d 1232, 1234 (Fla. 2d DCA 2007), this court held that it was fundamental error for the court to instruct the jury on the great bodily harm, permanent disability, or permanent disfigurement theory of aggravated battery when the information only charged the deadly weapon theory of aggravated battery and the State's evidence could have supported a verdict on the uncharged alternate theory of the offense. See also Brown v. State, 41 So.3d 259, 261 (Fla. 4th DCA 2010) (holding that it was fundamental error to instruct the jury on an uncharged theory of the offense because it was possible, based on the State's argument and the evidence presented, that the jury found the uncharged theory of the offense). In Zwick, 730 So.2d at 760, the defendant was charged with lewd or indecent assaults by committing specific acts, but the jury instructions were much more expansive, referencing other ways in which the offenses could have been committed. The court reversed because the jury returned a general verdict, making it possible that the defendant was convicted of uncharged acts. Id.

Based on the foregoing cases, the trial court committed fundamental error in instructing the jury on an offense—carjacking with a deadly weapon—that was not charged in the information.¹ The improper instruction clearly had an effect on the jury's verdict as evidenced by the special verdict form finding him guilty of carjacking with a deadly weapon. Not only was the jury instructed on a theory of the offense that was not charged in the information, but the jury was instructed on a theory of the offense that was unsupported by the evidence; the victim testified that Deleon carried a gun, and there was no evidence that he carried any other weapon during the commission of the offense.

We reject the State's argument...