commits fundamental error in Florida

2019Moreover, as relevant here, "where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment. . . . [I]f one of the state of facts is alleged, it cannot be established by proof of the other." Long v. State, 92 So. 2d 259, 260 (Fla. 1957); see also Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005) ("The law is well settled in Florida that where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the in

2014But “ ‘where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on *872 an alternative theory not charged in the information’ and the jury returns a general verdict of guilty without specifying the basis for the conviction.” Beasley v. State, 971 So.2d 228, 229 (Fla. 4th DCA 2008) (quoting Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)).

2008Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005); see, e.g., Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004) (finding fundamental error where jury instructed on alternate theory not *230 charged in the information); Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001) (same).

2006Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005) (finding fundamental error where jury instructed on alternate theory not charged in the information); Vega v. State, 900 So.2d 572, 573 (Fla. 2d *170 DCA 2004) (finding fundamental error where jury instructed on alternate theory for battery on law enforcement officer, where alternate theory was not charged); Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001) (finding fundamental error where jury instructed on alternate theory not charged in the information).

2008Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005); see, e.g., Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004) (finding fundamental error where jury instructed on alternate theory not *230 charged in the information); Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001) (same).

2006Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005) (finding fundamental error where jury instructed on alternate theory not charged in the information); Vega v. State, 900 So.2d 572, 573 (Fla. 2d *170 DCA 2004) (finding fundamental error where jury instructed on alternate theory for battery on law enforcement officer, where alternate theory was not charged); Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001) (finding fundamental error where jury instructed on alternate theory not charged in the information).

2015As to the first issue, we agree the jury instruction given on attempted voluntary manslaughter was fundamentally flawed under the circumstances of this case, which are identical to those in Williams v. State, 123 So.3d 23, 27 (Fla.2013) (“We hold, consistent with, our holding in [State v.] Montgomery, [ 39 So.3d 252, 258 (Fla.2010),] that a trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

2013In Williams , the supreme court held that “a trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.” 123 So.3d at 27 (emphasis added).

2019See Roberts v. State , 242 So.3d 296 , 299 (Fla. 2018).

2019See Roberts v. State , 242 So.3d 296 , 299 (Fla. 2018).

2019See Yisrael v. State , 65 So.3d 1177 , 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State , 28 So.3d 122 , 124-25 (Fla. 1st DCA 2010) ; Jackson v. State , 39 So.3d 427 , 428 (Fla. 1st DCA 2010) ).

2019See Yisrael v. State , 65 So.3d 1177 , 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State , 28 So.3d 122 , 124-25 (Fla. 1st DCA 2010) ; Jackson v. State , 39 So.3d 427 , 428 (Fla. 1st DCA 2010) ).

2019See Yisrael v. State , 65 So.3d 1177 , 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State , 28 So.3d 122 , 124-25 (Fla. 1st DCA 2010) ; Jackson v. State , 39 So.3d 427 , 428 (Fla. 1st DCA 2010) ).

2019See Yisrael v. State , 65 So.3d 1177 , 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State , 28 So.3d 122 , 124-25 (Fla. 1st DCA 2010) ; Jackson v. State , 39 So.3d 427 , 428 (Fla. 1st DCA 2010) ).

2018See Cagle v. State, 821 So. 2d 443, 444 (Fla. 2d DCA 2002).

2016See Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005) (“In the present case, the trial court assumed the role of the prosecutor and, in so doing, committed fundamental error.”); Cagle v. State, 821 So.2d 443, 444 (Fla. 2d DCA 2002) (holding that the trial, court committed fundamental error by calling and examining its own witness at defendant’s revocation of probation hearing); Edwards v. State, 807 So.2d 762, 763 (Fla. 2d DCA 2002) (“The trial court called and did all of the questioning of the two State witnesses, a probation officer and a police officer, turning the witnesses over to

2014But “ ‘where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on *872 an alternative theory not charged in the information’ and the jury returns a general verdict of guilty without specifying the basis for the conviction.” Beasley v. State, 971 So.2d 228, 229 (Fla. 4th DCA 2008) (quoting Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)).

2013“As a rule, ‘where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information’ and the jury returns a general verdict of guilty without specifying the basis for the conviction.” Beasley v. State, 971 So.2d 228, 229 (Fla. 4th DCA 2008) (quoting Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)). “[A] conviction for third-degree murder requires an underlying felony and a jury determination of the existence of such a felony.” State v. Sigler, 967 So.2d 835, 844 (Fla.2007).

2001Taylor v. State, 760 So.2d 298 (Fla. 4th DCA 2000); Abbate v. State, 745 So.2d 409, 410 (Fla. 4th DCA 1999).

2000Abbate v. State, 745 So.2d 409, 410 (Fla. 4th DCA 1999).

2005Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004); Mitchell v. State, 888 So.2d 665, 667 (Fla. 1st DCA 2004), review denied, 902 So.2d 790 (Fla.2005); Hodges v. State, 878 So.2d 401, 402 (Fla. 4th DCA), review denied, 890 So.2d 1114 (Fla.2004); Griffis v. State, 848 So.2d 422, 427 (Fla. 1st DCA 2003); Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001); Braggs v. State, 789 So.2d 1151, 1153-54 (Fla. 3d DCA 2001); Taylor v. State, 760 So.2d 298, 299 (Fla. 4th DCA 2000); O'Bryan v. State, 692 So.2d 290, 290-91 (Fla. 1st DCA 1997).

2001Taylor v. State, 760 So.2d 298 (Fla. 4th DCA 2000); Abbate v. State, 745 So.2d 409, 410 (Fla. 4th DCA 1999).

2025See Jackson v. State, 959 So. 2d 1282, 1283 (Fla. 1st DCA 2007) (“A trial court commits fundamental error when it finds that a probationer has violated his or her probation based on a term not ordered by the court.”).

2024See, e.g., Shelko, 268 So. 3d at 1005 (“A trial court commits fundamental error when it considers constitutionally impermissible factors when imposing sentence.”); accord Mercado, 353 So. 3d at 1259; Strong v. State, 254 So. 3d 428, 431 (Fla. 4th DCA 2018); Martinez, 123 So. 3d at 704 .

2024See, e.g., Shelko, 268 So. 3d at 1005 (“A trial court commits fundamental error when it considers constitutionally impermissible factors when imposing sentence.”); accord Mercado, 353 So. 3d at 1259; Strong v. State, 254 So. 3d 428, 431 (Fla. 4th DCA 2018); Martinez, 123 So. 3d at 704 .

2024As Nelson points out, the First District has held that a trial court commits fundamental error when it follows an “arbitrary policy not to consider” a lawful, below-guidelines sentence “without any reflection on the merits of [the defendant’s] case.” Pressley v. State, 73 So. 3d 834, 836 (Fla. 1st DCA 2011) (responding to defendant’s request for “boot camp,” a type of youthful offender sentence, the trial court announced, “[s]ir, I don’t do boot camp”).

2019Moreover, as relevant here, "where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment. . . . [I]f one of the state of facts is alleged, it cannot be established by proof of the other." Long v. State, 92 So. 2d 259, 260 (Fla. 1957); see also Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005) ("The law is well settled in Florida that where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the in

2017Second, the trial court compounded its error by resentencing Thompson in reliance upon the transcript from the August 26, 2016, hearing at which both Thompson and his counsel were absent. 3 See Payne v. State, 38 So.3d 827, 828 (Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.”); see also Frison v. State, 76 So.3d 1103, 1104 (Fla. 5th DCA 2011) (stating that full panoply of due process considerations apply at resen-tencing, including appointment of counsel); Mullins v. State, 99

2017Second, the trial court compounded its error by resentencing Thompson in reliance upon the transcript from the August 26, 2016, hearing at which both Thompson and his counsel were absent. 3 See Payne v. State, 38 So.3d 827, 828 (Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.”); see also Frison v. State, 76 So.3d 1103, 1104 (Fla. 5th DCA 2011) (stating that full panoply of due process considerations apply at resen-tencing, including appointment of counsel); Mullins v. State, 99

2017See A.W. v. State, 137 So.3d 521, 522 (Fla. 4th DCA 2014) (holding a trial court commits fundamental error by failing to follow Florida Rule of Juvenile Procedure 8.150, the juvenile rule equivalent of Florida Rule of Criminal Procedure 3.830); see also Peters v. State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993) (requiring “[sjcrupulous compliance” with Rule 3.830).

2017See A.W. v. State, 137 So.3d 521, 522 (Fla. 4th DCA 2014) (holding a trial court commits fundamental error by failing to follow Florida Rule of Juvenile Procedure 8.150, the juvenile rule equivalent of Florida Rule of Criminal Procedure 3.830); see also Peters v. State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993) (requiring “[sjcrupulous compliance” with Rule 3.830).

2017The State in this case concedes that the trial court failed to allow Appellant the opportunity to present evidence in his defense, instead asking only “why shouldn’t I hold you in direct contempt right now?” See A.W., 137 So.3d at 523 (holding that near-identical phrasing was insufficient).

2017Second, the trial court compounded its error by resentencing Thompson in reliance upon the transcript from the August 26, 2016, hearing at which both Thompson and his counsel were absent. 3 See Payne v. State, 38 So.3d 827, 828 (Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.”); see also Frison v. State, 76 So.3d 1103, 1104 (Fla. 5th DCA 2011) (stating that full panoply of due process considerations apply at resen-tencing, including appointment of counsel); Mullins v. State, 99

2016See Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005) (“In the present case, the trial court assumed the role of the prosecutor and, in so doing, committed fundamental error.”); Cagle v. State, 821 So.2d 443, 444 (Fla. 2d DCA 2002) (holding that the trial, court committed fundamental error by calling and examining its own witness at defendant’s revocation of probation hearing); Edwards v. State, 807 So.2d 762, 763 (Fla. 2d DCA 2002) (“The trial court called and did all of the questioning of the two State witnesses, a probation officer and a police officer, turning the witnesses over to

2016See Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005) (“In the present case, the trial court assumed the role of the prosecutor and, in so doing, committed fundamental error.”); Cagle v. State, 821 So.2d 443, 444 (Fla. 2d DCA 2002) (holding that the trial, court committed fundamental error by calling and examining its own witness at defendant’s revocation of probation hearing); Edwards v. State, 807 So.2d 762, 763 (Fla. 2d DCA 2002) (“The trial court called and did all of the questioning of the two State witnesses, a probation officer and a police officer, turning the witnesses over to

2016See Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005) (“In the present case, the trial court assumed the role of the prosecutor and, in so doing, committed fundamental error.”); Cagle v. State, 821 So.2d 443, 444 (Fla. 2d DCA 2002) (holding that the trial, court committed fundamental error by calling and examining its own witness at defendant’s revocation of probation hearing); Edwards v. State, 807 So.2d 762, 763 (Fla. 2d DCA 2002) (“The trial court called and did all of the questioning of the two State witnesses, a probation officer and a police officer, turning the witnesses over to

2015As to the first issue, we agree the jury instruction given on attempted voluntary manslaughter was fundamentally flawed under the circumstances of this case, which are identical to those in Williams v. State, 123 So.3d 23, 27 (Fla.2013) (“We hold, consistent with, our holding in [State v.] Montgomery, [ 39 So.3d 252, 258 (Fla.2010),] that a trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

2014More specifically, “it is fundamental error to instruct the jury on an uncharged alternate theory of a particular offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory.” Sanders v. State, 959 So.2d 1232,1234 (Fla. 2d DCA 2007).

2013“As a rule, ‘where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information’ and the jury returns a general verdict of guilty without specifying the basis for the conviction.” Beasley v. State, 971 So.2d 228, 229 (Fla. 4th DCA 2008) (quoting Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)). “[A] conviction for third-degree murder requires an underlying felony and a jury determination of the existence of such a felony.” State v. Sigler, 967 So.2d 835, 844 (Fla.2007).