IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WAYMON KIRKLAND, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-4751
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed August 10, 2017.
An appeal from the Circuit Court for Gadsden County.
Barbara K. Hobbs, Judge.
Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, Region One, Gainesville, and Michael J. Titus, Assistant
Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel,
Region One, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney
General, Tallahassee, for Appellee.
WINOKUR, J.
Waymon Kirkland appeals a judgment and sentence for felony battery and
aggravated battery with a deadly weapon. We reverse the felony battery conviction.
The State filed a two-count information charging Kirkland in Count I with
aggravated battery with a deadly weapon upon Dedrick Hall and in Count II with
aggravated battery with a deadly weapon upon Anterkeith Burns. The evidence at
Kirkland’s bench trial showed that Kirkland struck both men with a stick, Hall on
the leg and Burns on the head. The court found Kirkland guilty as charged on Count
II, but guilty of the lesser offense of felony battery on Count I. The court
acknowledged, and the State concedes on appeal, that there was no evidence of great
bodily harm, permanent disability, or permanent disfigurement presented at trial to
support the felony battery conviction.* However, Kirkland did not object to the
felony battery conviction on this ground, so we must find fundamental error in order
to reverse. See § 924.051(3), Fla. Stat.
We first observe that the lack of evidence supporting Kirkland’s conviction
for felony battery is not itself grounds for reversal. While no evidence was presented
to prove one of the elements of felony battery (great bodily harm, permanent
disability, or permanent disfigurement), there was evidence of a crime. Specifically,
the evidence showed that Kirkland committed a battery by striking Hall on the leg.
Therefore, Kirkland’s failure to object precludes reversal on this ground. F.B. v.
*
Felony battery consists of a simple battery (actually and intentionally
touching or striking another person against the will of the other) that “[c]auses great
bodily harm, permanent disability, or permanent disfigurement.” § 784.041(1), Fla.
Stat.
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State, 852 So. 2d 226, 230 (Fla. 2003) (holding that a defendant can present an
unpreserved claim of insufficiency on appeal in a noncapital case only when the
evidence is “insufficient to show that a crime was committed at all”) (emphasis
added).
However, we agree that it was fundamental error for the trial court to find
Kirkland guilty of felony battery because not all of the elements of felony battery
were charged in the information. The State charged two counts of aggravated battery.
Aggravated battery is a battery where the defendant either 1) intentionally or
knowingly causes great bodily harm, permanent disability, or permanent
disfigurement, or 2) uses a deadly weapon. § 784.045(1), Fla. Stat. In the former
situation, the charged crime includes all of the elements of felony battery, so felony
battery is a necessarily lesser-included offense. In the latter situation—aggravated
battery with a deadly weapon—felony battery is not a necessarily lesser-included
offense because the element of great bodily harm is not contained within the charged
crime.
Here, the State charged Kirkland with committing “a battery upon Dedrick
Hall by Hitting with a Bat, a deadly weapon.” That is, the State charged Kirkland
with aggravated battery with a deadly weapon. Because Kirkland was only charged
with aggravated battery using a deadly weapon, it was fundamental error, in this
specific context, to convict him of felony battery. See K.H. v. State, 763 So. 2d 1187,
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1188 (Fla. 4th DCA 2000). To do so violated his due process right to be notified of
the specific charges against him. See Ray v. State, 403 So. 2d 956, 959-60 (Fla.
1981).
We recognize the rule regarding fundamental error set forth in Ray, where the
Florida Supreme Court held as follows:
[I]t is not fundamental error to convict a defendant under an erroneous
lesser included charge when he had an opportunity to object to the
charge and failed to do so if: 1) the improperly charged offense is lesser
in degree and penalty than the main offense or 2) defense counsel
requested the improper charge or relied on that charge as evidenced by
argument to the jury or other affirmative action. Failure to timely object
precludes relief from such a conviction.
Id. at 961 (footnote omitted) (emphasis added). The rule in Ray applies where the
defendant had an opportunity to object. A defendant tried at bench trial has limited
opportunities to object to an erroneous lesser-included offense, primarily because
there is no charge conference or verdict form. See Chambers v. State, 880 So.2d 696,
702 n.10 (Fla. 2d DCA 2004) (en banc) (observing that Ray was distinguishable from
a case involving bench trial because defendant does not have opportunity to object
to trial court’s consideration of inappropriate lesser offenses); Nesbitt v. State, 819
So. 2d 993, 994 n.1 (Fla. 5th DCA 2002) (noting that Ray does not apply in cases
involving bench trials because “those cases did not present the opportunity to object
to the trier of fact’s consideration of inappropriate lesser offenses in lieu of the main
charge, an opportunity Ray finds to be significant”).
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The Third District’s opinion in V.C. v. State, 63 So. 3d 831 (Fla. 3d DCA
2011), is instructive. Like here, the State charged V.C. with aggravated battery with
a deadly weapon and did not allege great bodily harm. Nevertheless, after a nonjury
adjudicatory hearing, the trial court found V.C. guilty of felony battery. The Third
District concluded that the trial court erred, explaining that felony battery is a
category two permissive lesser-included offense of aggravated battery and, as such,
the State was required to charge all the requisite elements of felony battery in the
information in order for V.C.’s adjudication to be valid. Id. at 835. The court further
explained why the error was fundamental:
V.C.’s trial counsel did not have an opportunity to object to the trial
court’s finding because, as this was a juvenile proceeding and the case
was tried to the court rather than to a jury, no jury instructions were
prepared. Additionally, the record reflects that V.C. did not request that
the trial court consider any lesser included offenses, neither side argued
that the evidence supported a finding that V.C. committed a felony
battery, and V.C. took no action that in any way invited the error.
Id. at 834-35.
We are unpersuaded by the State’s effort to distinguish V.C. on grounds that
Kirkland, as an adult, had a right to a trial by jury affording him the opportunity to
object within the meaning of Ray. Kirkland did not waive his due-process right to
be adequately notified of the crimes of which he could be convicted by waiving his
right to a jury trial.
We conclude that the trial court committed fundamental error by convicting
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Kirkland of a crime for which he was not charged. Moreover, Kirkland did not
request the trial court to consider felony battery as a lesser-included offense, neither
side argued for conviction of felony battery, and Kirkland did not in any way invite
the error. We instruct the trial court to vacate the judgment and sentence for felony
battery and enter a judgment for the necessarily lesser-included offense of simple
battery. V.C., 63 So. 3d at 835. We affirm Kirkland’s conviction for aggravated
battery with a deadly weapon.
Affirmed in part; reversed in part; and remanded with directions.
ROBERTS and M.K. THOMAS, JJ., CONCUR.
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