Perley v. State
| Decision Date | 31 January 2007 |
| Docket Number | No. 4D06-1398.,4D06-1398. |
| Citation | 947 So.2d 672 |
| Parties | Daniel Paul PERLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Daniel Paul Perley, Lake City, pro se.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Daniel Paul Perley, appeals a judgment and sentence for one count of escape and two counts of resisting an officer without violence. Perley raises fourteen issues in this appeal, but we write to address only two of the issues in this opinion. Perley argues the trial court erred in allowing the State to present two separate theories of escape when only one count of escape was charged in the information, and in denying his motion for arrest of judgment on the conviction for escape. We agree with Perley's arguments, reverse his escape conviction and remand for a new trial on a single count of escape.
Perley was the passenger in a car detained as part of a routine traffic stop. When Perley was asked to show his identification, he did not immediately comply. The officer became concerned about the placement of Perley's hands and began to walk around to the passenger door. At this point, Perley jumped out of the car, allegedly shoved the officer and began running away. The officer caught Perley and a struggle ensued. Perley broke away and the officer pursued him. After the officer caught Perley and he was placed in the back of a police car, Perley began complaining of chest pains. Perley was taken to the hospital and while there, attempted to escape but was caught. Perley was charged with one count of escape, but at trial, the State informed the jury it could convict him of either instance of escape.
"It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument." Castillo v. State, 929 So.2d 1180, 1181 (Fla. 4th DCA 2006). "So-called technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case." Id. Perley waived this issue below, as no objection to the charging information was ever raised. However, even if waived below, if the defect constitutes fundamental error, it can be raised for the first time on direct appeal. Id. "A criminal information is fundamentally defective `only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.'" Felton v. State, 919 So.2d 557, 559 (Fla. 5th DCA 2005) (quoting Smartmays v. State, 901 So.2d 278 (Fla. 5th DCA 2005)). "The overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried." McMillan v. State, 832 So.2d 946, 948 (Fla. 5th DCA 2002).
The information was not fundamentally defective in and of itself. Count two of the information fully laid out the elements of escape, even though it did not include any factual specifics surrounding the escape which would have clarified the charge. However, while the information itself is not fundamentally defective, we find the trial court fundamentally erred in allowing the jury to deliberate on two separate instances of escape where Perley was only charged with one count of escape. The State contends that the two instances of escape merely constitute different theories of the crime, and argue that it was perfectly acceptable for it to move forward on dual theories at trial. We disagree with the State's argument. While the presentation of dual theories of a crime is allowable, this occurs when a defendant is charged with the commission of one crime, and the State presents two scenarios or bases supporting the commission of the crime. See Mackerley v. State, 777 So.2d 969 (Fla.2001). In this case, the State charged Perley with one count of escape, but presented evidence of two entirely separate incidents, separated by both time and place. By allowing the State to tell the...
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