Velasquez v. State, 93-03539
| Decision Date | 05 May 1995 |
| Docket Number | No. 93-03539,93-03539 |
| Citation | 654 So.2d 1227 |
| Parties | 20 Fla. L. Weekly D1118 David VELASQUEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Michael Shea and Frank D. Butler, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Johnny T. Salgado, Asst. Atty. Gen., Tampa, for appellee.
The appellant, David Velasquez, challenges the judgments and sentences entered against him after he was found guilty of three counts of aggravated assault with a firearm. We reverse.
Appellant was originally charged with four counts of aggravated assault with a firearm, in violation of section 784.021, Florida Statutes (1991), and four counts of attempted aggravated battery, in violation of sections 784.045 and 777.04, Florida Statutes (1991). The state amended the information twice and appellant was ultimately charged with three counts of attempted first degree murder, in violation of sections 782.04 and 777.04, Florida Statutes (1991). Appellant waived his right to a jury trial. The trial court heard the evidence and found appellant innocent of the attempted first degree murder charges but found him guilty of three counts of aggravated assault with a firearm. After the trial court adjudicated appellant guilty and imposed sentences, the appellant filed a timely notice of appeal.
Appellant raises several points on appeal. We agree with the contention that the charging document was insufficient to support the convictions of aggravated assault with a firearm and reverse the convictions on that basis.
Appellant was found guilty of the lesser included offense of aggravated assault with a firearm. One of the essential elements of this crime which the state must allege is that the offender created a well founded fear in the victim of imminent violence. State v. Roberts, 616 So.2d 79 (Fla. 2d DCA 1993). The charging document in the instant case charged only the elements of the crime of attempted first degree murder. It is undisputed that the information failed to allege that the appellant created in the victims a well founded fear of imminent violence. The absence of this specific allegation in the information is reversible error. State v. Von Deck, 607 So.2d 1388 (Fla.1992); Roberts.
A conviction on a charge not made by the indictment is a denial of due process of law. State v. Gray, 435 So.2d 816 (Fla.1983). The complete failure of an information to charge a crime is an error that can be raised at any time. State v. Gray, 435 So.2d at 818. Accordingly, appellant may raise this issue for the first time on appeal.
Because the charging document failed to allege all the essential elements of the...
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...cited to three cases: State v. Von Deck, 607 So.2d 1388 (Fla.1992), State v. Gray, 435 So.2d 816 (Fla.1983), and Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995). Von Deck involved a conviction for an improper lesser-included offense; however, the error was a preserved error. The court......
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Zellars v. State, 97-364
...prosecutor in the filing of charges based upon the concept of attempt. It is interesting to note the case of Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995), wherein the state elevated counts of aggravated assault into counts of attempted first degree murder, ultimately resulting in t......
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Pena v. State, 2D01-1066.
...of an offense in the charging document is fundamental error, see State v. Von Deck, 607 So.2d 1388 (Fla.1992); Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995); State v. Roberts, 616 So.2d 79 (Fla. 2d DCA 1993), and that such an issue can be raised at any time. State v. Gray, 435 So.2d......
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Nesbitt v. State, 5D01-203.
...use of the adjective "deadly" would be surplusage. 1. Cases such as K.H. v. State, 763 So.2d 1187 (Fla. 4th DCA 2000),Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995),Jaramillo v. State, 659 So.2d 1238 (Fla. 2d DCA 1995), and Mauldin v. State, 696 So.2d 801 (Fla. 2d DCA 1997), which ho......