State v. Robinson

Court: District Court of Appeal of Florida
Date filed: 2013-10-18
Citations: 123 So. 3d 679, 2013 WL 5658348, 2013 Fla. App. LEXIS 16590
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Lead Opinion
PER CURIAM.

The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm. Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental error, necessitating a new trial. We agree with Appel-lee and reverse and remand for a new trial.

The aggravated assault instruction was fundamentally erroneous because it was based on a theory not charged in the information. Grau v. State, 101 So.3d 922 (Fla. 5th DCA 2012); Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999). Because of our conclusion on this issue, it is not necessary to address the State’s argument

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that Appellee invited error in the self-defense instruction.

REVERSED AND REMANDED.

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.