non-existent crime is fundamental error in Florida

2003See Kransnosky v. Robbins, 120 So.2d 184, 185 (Fla.1960)(ruling that the trial judge was justified in refusing a requested jury instruction because it did not accurately state the law); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996)(ruling that "[c]onviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant, as was the case here, by request for a jury instruction on a non-existent offense").

2002See, e.g., Achin v. State, 436 So.2d 30, 31 (Fla. 1982) ("We hold that one may never be convicted of a nonexistent crime...."); Mundell v. State, 739 So.2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist."); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error

2010The Fourth District has said, “A conviction for a non-existent crime is fundamental error that can be raised at any time, even if the error was ‘invited’ by acceptance of a negotiated plea or by a request for jury instructions.” Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (offense of attempted aggravated assault on a law enforcement officer).

2008In Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006), we held, "A conviction for a non-existent crime is fundamental error that can be raised at any time. . . ." In addition, "a conviction on a charge not made by the indictment or information," even if valid under Florida law, "is a denial of due process of law" and "is a defect that can be raised at any time-before trial, after trial, on appeal, or by habeas corpus." State v. Gray, 435 So.2d 816, 818 (Fla.1983).

2006Mundell v. State, 739 So.2d 1201 (Fla. 5th DCA 1999); Fredericks v. State, 675 So.2d 989 (Fla. 1st DCA 1996).

2002See, e.g., Achin v. State, 436 So.2d 30, 31 (Fla. 1982) ("We hold that one may never be convicted of a nonexistent crime...."); Mundell v. State, 739 So.2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist."); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error

2002See, e.g., Achin v. State, 436 So.2d 30, 31 (Fla. 1982) ("We hold that one may never be convicted of a nonexistent crime...."); Mundell v. State, 739 So.2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist."); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error

1996Achin v. State, 436 So.2d 30 (Fla.1982).

2010The Fourth District’s decision in White v. State, 973 So.2d 638, 640-41 (Fla. 4th DCA 2008), suggests that the Fourth District would apply that analysis to a defendant who -was convicted of attempted first-degree felony murder, if the defendant’s case fell within the Gray window. 5 We affirm because the test for manifest injustice under McBride is not satisfied.

2008In Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006), we held, "A conviction for a non-existent crime is fundamental error that can be raised at any time. . . ." In addition, "a conviction on a charge not made by the indictment or information," even if valid under Florida law, "is a denial of due process of law" and "is a defect that can be raised at any time-before trial, after trial, on appeal, or by habeas corpus." State v. Gray, 435 So.2d 816, 818 (Fla.1983).

2008This holding is reiterated by Florida Rule of Criminal Procedure 3.610(a) which permits the court to grant a motion in arrest of judgment when "[t]he indictment or information on which the defendant was tried is so defective that *641 it will not support a judgment of conviction." "The reason for this provision is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial." DuBoise v. State, 520 So.2d 260, 264 (Fla. 1988).

2007Jordan v. State, 801 So.2d 1032, 1034 (Fla. 5th DCA 2001).

2003See Kransnosky v. Robbins, 120 So.2d 184, 185 (Fla.1960)(ruling that the trial judge was justified in refusing a requested jury instruction because it did not accurately state the law); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996)(ruling that "[c]onviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant, as was the case here, by request for a jury instruction on a non-existent offense").

2002See, e.g., Achin v. State, 436 So.2d 30, 31 (Fla. 1982) ("We hold that one may never be convicted of a nonexistent crime...."); Mundell v. State, 739 So.2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist."); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error