Torrence v. State

• Decision Date: 04 October 1983
• Docket Number: No. 80-470,80-470
• Parties: Ronnie George TORRENCE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 392

440 So.2d 392

Ronnie George TORRENCE, Appellant, v. STATE of Florida, Appellee.

No. 80-470.

District Court of Appeal of Florida,

Fifth District.

Oct. 4, 1983.

Rehearing Denied Nov. 8, 1983.

Michael H. Lambert, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.

EN BANC.

Torrence was charged in a three count information with armed burglary, ¹ attempted robbery, and use of a firearm in the commission of a felony. In charging attempted robbery (count II), the information alleged as follows:

CHARGE: Attempted Robbery, in Violation of F.S. 812.13 & 777.04.

SPECIFICATIONS OF CHARGE: In that RONNIE GEORGE TORRENCE did, on or about the 22nd day of February, 1979, at or near Daytona Beach within Volusia County, Florida, unlawfully by force, violence, assault or putting in fear, attempt to take certain property, to-wit: money, the property of Thoni Oil Magic Benzol Gas Stations, Inc. as owner or custodian, from the person or custody of Richard Graves, Jr., and in the course of committing said Robbery, carried a firearm, to-wit: a handgun. (emphasis supplied)

The use of the phrase "carried a firearm" was apparently intended to bring into operation the enhanced felony provision in section 812.13(2)(b), Florida Statutes (1981), which provides "If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree ...".

After instructing the jury on attempted robbery, the trial court, believing aggravated assault to be a lesser included offense, proceeded to charge the jury on the elements of that crime. The record does not reveal any objection by Torrence's counsel to this instruction.

Torrence was found guilty of aggravated assault and use of a firearm in the commission of a felony. He was sentenced to three years imprisonment on the aggravated assault charge but sentencing was withheld on the use of a firearm charge. On this appeal, the question is whether aggravated assault was a lesser included offense of attempted robbery and if not, whether Torrence's failure to object to the instruction thereon constituted a waiver of any error. ²

In Brown v. State, 206 So.2d 377 (Fla.1968), the supreme court identified four categories of lesser included offenses. An aggravated assault is not a necessarily lesser included (category three) offense of attempted robbery since it was not necessary for the state in seeking to prove an attempted robbery to prove an aggravated assault. Brown, 206 So.2d at 382-83. Nor is it a category four lesser included offense in this case because the information did not contain all the elements of an aggravated assault. ³ An aggravated assault occurs when a person commits an assault with a deadly weapon or with an intent to commit a felony. § 784.021, Fla.Stat. (1981). The crime contemplates the use of a deadly weapon, i.e., that the accused assaulted the victim with a deadly weapon. Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978). See also State v. McQuay, 403 So.2d 566 (Fla. 3d DCA 1981). An allegation that the accused "carried a firearm" is insufficient in this regard. Vitko.

The remaining question, however, is whether the error in giving the instruction was fundamental and requires reversal of the conviction in the absence of an objection. ⁴ We believe that Ray v. State, 403 So.2d 956 (Fla.1981), controls this question.

In that case, Ray was charged with sexual battery and the trial court instructed on commission of a lewd and lascivious act (lewd assault) as a lesser included offense. Both crimes are second degree felonies. A reconstructed record of the charge conference reflected that defense counsel did not object to the court's charge. Ray was convicted of lewd assault and on appeal initially argued that such crime is not a lesser included offense of sexual battery. The supreme court agreed, finding that it is not a Brown category three lesser included offense and further that it was not a category four lesser included because the information failed to contain all the elements of lewd assault. The court then considered whether the conviction constituted fundamental error.

After defining fundamental error as that which amounts to a denial of due process, the court enunciated the following rule regarding a conviction under an erroneous lesser included charge:

We hold, therefore, that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction. (emphasis added)

403 So.2d at 961.

The court concluded that no waiver existed in the case before it since the crime on which the trial court erroneously instructed and of which Ray was convicted (lewd assault) was not lesser in degree and penalty than the crime charged and the record did not show that Ray's attorney had requested or affirmatively relied on the instruction.

Applying Ray here, while count II of the information charging attempted robbery did not allege all of the elements of aggravated assault and hence that crime was not a category four lesser included offense, it was not fundamental error to convict Torrence of the crime since he had opportunities to object on the record to the erroneous instruction as well as the verdict form and failed to do so and aggravated assault is lesser in degree and penalty than attempted robbery. ⁵

We also emphasize that there was ample evidence presented to prove Torrence used the firearm, that the instruction to the jury on aggravated assault correctly required proof of use of the firearm, and that Torrence was not in any way embarrassed or prejudiced in his defense as defense counsel repeatedly questioned witnesses regarding the use of the firearm. See Blow v. State, 386 So.2d 872 (Fla. 1st DCA 1980).

Therefore, we conclude that the omission of the term "used" in the context of this case was not fundamental error and affirm.

AFFIRMED.

ORFINGER, C.J., and DAUKSCH, COBB and FRANK D. UPCHURCH, Jr., concur.

SHARP and COWART, JJ., dissent with opinion.

SHARP, Judge, dissenting.

I respectfully dissent in this case, primarily because I think there was no conflict between the opinion proposed by the original panel and Carter v. State, 380 So.2d 541, 542 (Fla. 5th DCA 1980), and Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980). The original panel would have affirmed Torrence's conviction under Count III (use of a firearm in the commission of a felony), and would have reduced his conviction under Count II to simple assault, following the mandate of Ray v. State, 403 So.2d 956 (Fla.1981).

There is no conflict, potential or otherwise, between the original panel's opinion and the two cases suggested by the en banc opinion as a basis for involving the conflict en banc rule. Wilson was decided before Ray, and to the extent Wilson departs from Ray, Ray should be controlling. Carter is completely consistent with Ray because in Carter, the defendant "requested a penalty instruction in regard to this lesser offense and argued the refusal thereof as a ground for new trial .... We agree with the state on the estoppel argument, and the requirement of contemporaneous objection ...." Id. at 543.

The only "conflict" I see here is the one created by this en banc decision and Ray. As the majority notes, there is nothing in this record upon which to base any kind of waiver or estoppel of the defect in Count II on the part of Torrence or his attorney. Ray clearly requires such.

We agree that no waiver has been shown in the instant case. The two crimes instructed on by the trial court are both second-degree felonies, and lewd assault is not a permissible lesser included offense of sexual battery. On these facts, silence alone is not sufficient to demonstrate a waiver. (Emphasis added).

If Ray's counsel had requested the improper instruction, or had affirmatively relied on that charge as evidenced by argument to the jury or other affirmative action, we could uphold a finding of waiver absent an objection because constitutional error might not be fundamental error, and because even constitutional rights can be waived if not timely presented....

We hold, therefore, that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action....

Id. at 961. Since the charge conference and closing arguments were not transcribed in this case, and no other affirmative action is shown here, I think Ray mandates reversal of Torrence's conviction under Count II, and, therefore, reduction to simple assault.

With regard to Count III, there is no fundamental defect. The information alleged:

Use of a Firearm While Committing or Attempting To Commit a Felony, in Violation of F.S. 790.07(2), ... In that RONNIE GEORGE TORRENCE did, on or about the 22nd day of February, 1979, at or near Daytona Beach within Volusia County, Florida, while committing or attempting to commit a felony, to-wit: Burglary, Robbery, or Aggravated Assault, then and there, in the presence of Richard Graves, Jr., display, use, threaten or attempt to use a firearm, to-wit: a handgun. (Emphasis added).

In Robinson v. State, 323 So.2d 62 (Fla. 1st DCA 1975), a conviction was sustained where the information alleged in a separate count use of a firearm in the commission of a felony, but failed...