Mauldin v. StateMauldin v. State
Robert A. Butterworth, Attorney General, Tallahassee, and Robert L. Martin, Assistant Attorney General, Tampa, for Appellee.
CAMPBELL, Acting Chief Judge.
Appellant argues, and the state concedes, that appellant was improperly convicted of misdemeanor battery (
At trial, the state conceded that though aggravated assault was not proved, battery had been proved. The court agreed and found appellant guilty of misdemeanor battery. This was error.
The information alleged that appellant intentionally and unlawfully threatened to do violence to Becky Mauldin, had an apparent ability to do so and did an act creating a well-founded fear in Becky that such violence was imminent and, in so doing, used a deadly weapon, a firearm, without intent to kill Becky. However, in order to properly charge a battery, the state would have been required to allege that appellant intentionally committed an unwanted touching (
A conviction on a charge not made by the indictment is a denial of due process. See State v. Gray, 435 So. 2d 816 (Fla. 1983); Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995). Since battery is not a category two lesser included offense of aggravated assault, and the elements of battery were not charged in the information, appellant was improperly convicted on a charge not made in the indictment. See Fla. Std. Jury Instr. (Crim.), Schedule of Lesser Included Offenses;
We, accordingly, reverse and remand. On remand, the state may file an amended information and retry appellant on the offense of battery. See Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995); Velasquez. See also Von Deck v. Evander, 622 So. 2d 1160 (Fla. 5th DCA 1993).
PARKER, J., and DAKAN, STEPHEN L., Associate Judge, concur.