146 So. 3d 508
Fla. Dist. Ct. App.2014Background
- This is a Florida Fifth District Court of Appeal rehearing reconsideration of a consented reversal case involving Dale Morgan and three counts of sexual battery against his minor daughter.
- The court granted Morgan’s motion for rehearing on ineffective assistance grounds, withdrew the prior opinion, and substituted a new opinion.
- Morgan was convicted of three sexual battery counts under an Amended Information alleging different time periods and ages, all under section 794.011(2), Florida Statutes.
- The jury instructions and verdict form included two uncharged-offense questions (mouth contact and mouth-to-vagina) at the State’s request; Morgan did not object to the form.
- The majority found Morgan’s trial counsel affirmatively agreed to the uncharged-offense instruction during the charge conference, constituting invited error, and the convictions were for offenses not charged.
- The court reversed Morgan’s convictions on ineffective-assistance grounds and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Convictions for uncharged offenses? | Morgan convicted of acts not charged | Amended Information cited the statute and charged the overall offense | Yes; convictions for uncharged offenses existed; reversed. |
| Invited-error doctrine applicability? | Defense invited the improper instruction | Counsel objected? record shows agreement | Yes; Morgan affirmatively agreed to the instruction, inviting the error. |
| Ineffective assistance of counsel? | Counsel failed to object and consented to improper instructions | Standard Strickland analysis applies; no prejudice shown? | Yes; deficient performance with prejudice; remand for new trial. |
| Remedy for constitutional violation? | Reversal and new trial warranted | N/A | Convictions reversed and remanded for new trial. |
Key Cases Cited
- Jaimes v. State, 51 So.3d 445 (Fla. 2010) (conviction for uncharged offenses violates due process)
- Cole v. Arkansas, 383 U.S. 196 (Supreme Court 1966) (due process prohibits conviction of uncharged crimes)
- Trahan v. State, 913 So.2d 729 (Fla. 2005) (trial for charged offenses only; uncharged offenses improper)
- D.R. v. State, 790 So.2d 1242 (Fla. 5th DCA 2001) (information must charge specific offenses; uncharged acts improper)
- Zwick v. State, 730 So.2d 759 (Fla. 5th DCA 1999) (unlawful to convict for uncharged offenses not in information)