Falstreau v. State
| Decision Date | 06 February 1976 |
| Docket Number | No. 74--871,74--871 |
| Citation | 326 So.2d 194 |
| Parties | Matthew FALSTREAU, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Elliot R. Brooks and Craig Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant-defendant, Matthew Falstreau, was charged by indictment, in count one, with breaking and entering of a dwelling house with the intent to commit a felony, to-wit: rape, and in count two, with rape. Trial was by jury. At the conclusion of the evidence, the trial court instructed the jury with reference to count two of the indictment that they, the jury, could find the appellant guilty of aggravated assault, if the evidence so warranted, as such crime was a lesser included offense of the crime of rape. No objection to this instruction was made by appellant either at the time the instruction was given or any time thereafter. The jury returned its verdict finding appellant guilty of breaking and entering of a dwelling house with the intent to commit a felony, to-wit: rape, as alleged in count one of the indictment and aggravated assault as a lesser included offense of rape as alleged in count two of the indictment. The trial court then adjudged defendant guilty and sentenced him to a term of years in the state prison under count one of the indictment.
Defendant was also adjudged guilty under count two of the indictment. Imposition of sentence, however, was withheld under count two with the defendant placed on probation for a term of years. This appeal then followed.
Appellant now contends that it was fundamental error for the trial court to adjudge him guilty of aggravated assault under count two of the indictment. We agree.
Upon proper proof a defendant may be convicted of the crime with which he was charged in the accusatory pleading. Rules 3.490 and 3.510 Fla.RCrP (1975) further provide that a defendant under a criminal charge may be convicted of any crime which is (1) a lesser degree of the crime charged, (2) an attempt to commit the crime charged, (3) necessarily included in the crime charged, or (4) included within the allegations of the accusatory pleading and shown by the proofs. A conviction of a crime with which the defendant was not charged and which does not fall within one of the four categories suggested by the abovementioned rules has been held to be fundamental error....
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Ray v. State
...regardless of the defendant's failure to object. 4 The Fourth District Court of Appeal reached the same conclusion in Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976), and Priester v. State, 294 So.2d 421 (Fla. 4th DCA 1974). All of these cases speak of fundamental error; in other case......
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Carter v. State
...doctrine of fundamental error if he is to prevail on this appeal. In support of this position, the appellant relies on Falstreau v. State, 326 So.2d 194 (Fla.4th DCA 1976); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); O'Neal v. State, 308 So.2d 569 (Fla.2d DCA 1975); Causey v. State, 30......
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Hicks v. State, 77-1117
...a crime not charged; accordingly, for that reason, we reverse. See Minor v. State, 359 So.2d 30 (Fla. 2d DCA 1976); Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976); and Priester v. State, 294 So.2d 421 (Fla. 4th DCA As stated above, appellant's point one, two, three, and four on appea......
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E.W., In Interest of, 92-1971
...defendant's benefit. At no time did Appellant consent to being tried for grand theft nor was the error invited. See Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976), called into doubt by Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980); Gordon v. State, 603 So.2d 512 (Fla. 1st DCA 19......