Ray v. State, No. 57795

• Court: United States State Supreme Court of Florida
• Writing for the Court: McDONALD; SUNDBERG; ALDERMAN, J., concurs in part and dissents in part with an opinion with which BOYD; ALDERMAN; BOYD
• Citation: 403 So.2d 956
• Parties: John Hunter RAY, Petitioner, v. STATE of Florida, Respondent.
• Decision Date: 30 July 1981
• Docket Number: No. 57795

Page 956

403 So.2d 956 John Hunter RAY, Petitioner,
v.
STATE of Florida, Respondent. No. 57795. Supreme Court of Florida. July 30, 1981.
Rehearing Denied Oct. 9, 1981.

Page 958

Lawrence E. Staab and David Paul Montgomery of Staab & Montgomery, Bradenton, for petitioner.

Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for respondent.

McDONALD, Justice.

We have accepted jurisdiction to resolve conflict created by Ray v. State, 374 So.2d 1002 (Fla.2d DCA 1979), and Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975). Art. V, § 3(b)(3), Fla. Const. (1972). The issue to be determined is whether a defendant convicted of a crime for which he was not charged, but which was submitted to the jury as a lesser included offense when in fact it was not, may challenge that conviction when he failed to object to the submission of that crime to the jury. We quash the instant decision.

Under section 794.011(5), Florida Statutes (1975), ¹ an information alleged that Ray "did commit a sexual battery upon..., a person over the age of eleven, without her consent, and in the process thereof used physical force and violence not likely to cause serious personal injury." Besides instructing on sexual battery, the trial court also instructed the jury on committing a lewd and lascivious act as a lesser included offense of sexual battery. The jury convicted Ray of lewd assault as proscribed by section 800.04, Florida Statutes (1975). ²

Two days after the jury rendered its verdict, Ray filed motions for a new trial and to arrest judgment. As grounds for relief, these motions alleged that Ray was convicted of an offense not charged because lewd assault is not a lesser included offense of sexual battery. The trial court denied both motions, and Ray appealed his conviction and sentence to the district court. That court affirmed the conviction.

An incomplete record was presented to the district court. Specifically, the charge conference had not been recorded. Trying to fill this gap, the court ordered a reconstruction of the conference. In response, defense counsel neither admitted nor denied requesting the lewd and lascivious charge and stated that, upon the court's announcement that the charge would be given, neither counsel objected to or commented on the charge at any time. The prosecutor agreed with this statement, but considered it unlikely that the charge was not discussed. The judge responded that at the time of Ray's trial she never charged on a lesser included offense unless requested to do so by one of the parties.

The lack of a complete record, even as reconstructed, placed the Second District in the unenviable position of having to guess at what occurred during the charge conference. ³ After scrutinizing the record as reconstructed, the court found that Ray could, and should, have objected to the improper

Page 959

instruction at several points in the proceedings. Concluding that any "error was invited if not induced," the district court held that he had waived any error or else was estopped to claim error for the first time on appeal. 374 So.2d at 1003.

To dispose of this case, we must first determine whether committing a lewd and lascivious act on a minor under the age of fourteen is a lesser included offense of sexual battery of a person over the age of eleven. In Brown v. State, 206 So.2d 377 (Fla.1968), this Court identified four categories of lesser included offenses. Committing a lewd and lascivious act is not a necessarily lesser included (type 3) offense of sexual battery. Walker v. State, 351 So.2d 382 (Fla. 4th DCA 1977). Nor is it a category 4 lesser included offense in the instant case because the information did not contain all the elements specified in section 800.04. See id.; Brown. It is also not "lesser" because both section 794.011(5) and section 800.04 are second-degree felonies. Thus, Ray was convicted of a crime for which he was not charged and which was not a permissible lesser included offense of the crime for which he was charged.

Ray claims that convicting him of a crime not charged constitutes fundamental error which is per se reversible. To support this claim, Ray relies on Minor v. State, 329 So.2d 30 (Fla.2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); O'Neal v. State, 308 So.2d 569 (Fla.2d DCA), overruled in Roberts v. State, 320 So.2d 832 (Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); and Johnson v. State, 226 So.2d 884 (Fla.2d DCA 1969). In these cases, the Second District found that erroneous instructions on lesser included offenses, are indeed, fundamental error.

These Second District cases are unanimous in characterizing faulty instructions on lesser included offenses as fundamental error 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 cases, erroneous lesser included instructions have been found to be reversible, but not fundamental, error. See Smith v. State, 365 So.2d 405 (Fla.3d DCA 1978); Hicks v. State, 362 So.3d 730 (Fla.2d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979); Walker v. State, 351 So.2d 382 (Fla.4th DCA 1977); Evanco v. State, 318 So.2d 535 (Fla.1st DCA 1975). In all of the cases finding that an erroneous instruction produced a conviction for a crime not charged, only one (Hicks) says that the defendant objected to the charge; the rest are silent on that point.

The district court cases do not explain why convictions based on erroneous instructions are fundamental error. Our own investigation has yielded the following information.

As stated by the United States Supreme Court:

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). The Court went on to comment that:

It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.

Id. As support for this statement, the Court cited De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937), wherein the Court had previously stated

Page 960

that "(c)onviction upon a charge not made would be a sheer denial of due process." Id. at 362, 57 S.Ct. at 259.

This Court has reached the same conclusion.

The Constitution guarantees to every accused person ... the right to know "the nature and cause of the accusation against him," and it necessarily follows that the accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.

Penny v. State, 140 Fla. 155, 162, 191 So. 190, 193 (1939). Accord,...