Harris v. State
| Citation | 76 So.3d 1080 |
| Decision Date | 28 December 2011 |
| Docket Number | No. 2D10–3664.,2D10–3664. |
| Parties | Anthony James HARRIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Anthony James HARRIS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D10–3664.
District Court of Appeal of Florida, Second District.
Dec. 28, 2011.
[76 So.3d 1081]
James Marion Moorman, Public Defender, and Ronald N. Toward, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Chief Judge.Anthony James Harris appeals his convictions and sentences for robbery with a firearm and battery. Because the trial court committed fundamental error, as the State concedes, in sentencing Harris for robbery with a firearm when he was not charged with that crime in the second-amended information, we reverse his judgment and sentence for that crime.
In count one of the second-amended information, the State alleged that on January 5, 2007, Harris
by force, violence, assault or putting in fear, did attempt to take from the person or custody of Kenneth McCullough, money or other property, to wit: personal property over $300.00, with intent to either permanently or temporarily deprive Kenneth McCullough of said money or property, and in the course of committing said Robbery, [Harris] did carry a firearm; contrary to Chapter 812.13(2)(a)*777.04*777.011, Florida Statutes [ (2006).]
(Emphasis added.)
Although the charging document alleged an attempted robbery with a firearm in count one, testimony adduced at trial reflected that Harris completed the robbery with a firearm as to the victim. On count one the trial court instructed the jury on robbery with a firearm and the lesser included offenses of robbery with a weapon, robbery without a firearm or weapon, theft, and battery. The court did not give an instruction for attempted battery. The jury found Harris guilty of robbery with a firearm. At sentencing, the trial court declared Harris a habitual violent felony offender but did not sentence him as such; rather, the trial court sentenced Harris to life in prison as a prison release reoffender for robbery with a firearm.1
It is a denial of due process to convict a defendant of a crime that the State has not charged. See Jaimes v. State, 51 So.3d 445, 448 (Fla.2010). The State concedes that it was fundamental error to convict Harris of robbery with a firearm when the State charged him with attempted robbery with a firearm. See id. at 451 (determining that fundamental error occurred when the defendant was convicted of aggravated battery by causing great bodily harm when the State charged the defendant with aggravated battery with a deadly weapon). But the State disputes the remedy that Harris seeks.
[76 So.3d 1082]
Harris contends that we must reverse his conviction for robbery with a firearm and remand for a new trial. The State argues, however, that Harris is not entitled to a new trial. The State argues that, instead, this court should direct the trial court to enter a judgment for attempted robbery with a firearm pursuant to section 924.34, Florida Statutes (2011). Section 924.34 provides as follows:
When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but...
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