Facundo v. State of Florida
2D2024-2599
Fla. Dist. Ct. App.Jun 6, 2025Background
- Alfred Facundo was convicted of kidnapping in Manatee County, Florida.
- The amended information in his case referenced "attempted kidnapping" in its wording.
- Facundo filed a petition alleging ineffective assistance of appellate counsel.
- He argued that appellate counsel failed to raise the issue that he was convicted of a crime (kidnapping) not charged in the information (attempted kidnapping).
- The District Court of Appeal reviewed whether this deficiency undermined the fairness and correctness of the appellate result.
- The court ordered that Mr. Facundo is entitled to a new appeal on this issue.
Issues
| Issue | Facundo's Argument | State's Argument | Held |
|---|---|---|---|
| Ineffective assistance of appellate counsel—failure to argue fundamental error for conviction of an uncharged crime | Appellate counsel was deficient for not raising that conviction was for an uncharged crime (kidnapping vs. attempted kidnapping). | No specific argument noted; State opposed relief. | Appellate counsel was ineffective; petition granted; new appeal allowed on this issue. |
Key Cases Cited
- Jaimes v. State, 51 So. 3d 445 (Fla. 2010) (due process prohibits conviction for an uncharged crime; such error is fundamental)
- State v. Gray, 435 So. 2d 816 (Fla. 1983) (conviction on an information omitting essential crime elements is a due process violation, correctable at any time)
- Harris v. State, 76 So. 3d 1080 (Fla. 2d DCA 2011) (fundamental error to convict for a greater offense than that actually charged)