Voyer v. State

• Court: Florida District Court of Appeals
• Writing for the Court: PALMER
• Citation: Voyer v. State, 113 So.3d 101 (Fla. App. 2013)
• Decision Date: 17 May 2013
• Docket Number: No. 5D12–497.,5D12–497.
• Parties: Christopher John VOYER, Appellant, v. STATE of Florida, Appellee.

113 So.3d 101

Christopher John VOYER, Appellant,

v.STATE of Florida, Appellee.

No. 5D12–497.

District Court of Appeal of Florida, Fifth District.

May 17, 2013.

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER, J.

Christopher Voyer (defendant) appeals his judgment and sentence on one count of lewd or lascivious molestation. Determining that fundamental error occurred when the trial court entered a judgment on a charge which had not been submitted to the jury, we reverse.

The defendant was charged with committing eighteen criminal offenses: six counts of sexual battery, six counts of sexual activity with a child, and six counts of lewd or lascivious molestation. At the close of the State's case-in-chief, the trial court entered judgments of acquittal on ten of the eighteen counts, including count 2 (sexual activity with a child).

Thereafter, in preparing the verdict forms, the parties re-numbered the surviving eight counts; hence, the numbers of the counts submitted to the jury did not align with the numbers of the counts as they were set forth in the information. During the jury charge, the trial court properly instructed the jury that the renumbered count 2 involved the charge of lewd or lascivious molestation (as originally charged in count 3 of the information). However, when reading the verdict forms to the jury, the court read the verdict form prepared for the originally numbered count 2, stating that the defendant was being charged with the crime of sexual activity with a child. The verdict forms provided to the jury also erroneously included the original count 2 (sexual activity with a child), rather than the re-numbered count 2 (lewd or lascivious molestation).

The jury found the defendant guilty on all counts. Apparently failing to recognize that the jury's verdict on count 2 did not align with the actual charge on the re-numbered count 2, the trial court entered a judgment adjudicating the defendant guilty of, among other things, lewd or lascivious molestation as to count 3 as charged in the information. The court then sentenced the defendant to 30 years' imprisonment on count 3.

The defendant contends that it was fundamental error for the trial court to adjudicate him guilty and sentence him for the crime of lewd or lascivious molestation on count 3 when the jury had not found him guilty of the charge. The State properly concedes error. The only dispute between the parties is what relief the defendant is entitled to receive in this court.

The defendant contends that his judgment and sentence on count 3 must be reversed and that he must be discharged on that count because the jury did not find him guilty of that charge and, therefore, the trial court can take no action which would remedy the infirmity on remand. We agree. See Jaimes v. State, 51 So.3d 445, 451 (Fla.2010) (holding that it is a fundamental principle of due process that a defendant cannot be convicted of a crime that has not been charged by the State; an error that directly results in such a conviction is fundamental). See also Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957) (explaining one charged with a crime...