Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005). · Go Syfert
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Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005). Cases Citing This Book View Copy Cite
“ince the jury returned a general verdict of guilty ... it is impossible to determine whether appellant was convicted of a charged or an uncharged offense”
12 citation events (12 in the last 25 years) across 1 distinct court.
Strongest positive: Cogbill v. State (fladistctapp, 2006-10-26)
Top citers, strongest first. 7 distinct citers.
discussed Cited as authority (verbatim quote) Cogbill v. State (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2006 · signal: see also · quote attribution · 1 verbatim quote · confidence high
ince the jury returned a general verdict of guilty ... it is impossible to determine whether appellant was convicted of a charged or an uncharged offense
discussed Cited as authority (rule) Wunsch v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
But “ ‘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)).
discussed Cited as authority (rule) Spagnolo v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
“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 (F…
discussed Cited as authority (rule) Jomolla v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005) (finding fundamental error where the jury was instructed on an alternative theory not charged in the information); see also Debose v. State, 920 So.2d 169, 169 (Fla. 1st DCA 2006); *1238 Braggs v. State, 789 So.2d 1151, 1154 (Fla. 3d DCA 2001).
discussed Cited as authority (rule) Beasley v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Eaton 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).
discussed Cited as authority (rule) Debose v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
Eaton 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).
discussed Cited "see, e.g." HERBERT REESE v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · signal: see also · confidence medium
Moreover, 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…
Clayton EATON, Appellant,
v.
STATE of Florida, Appellee.
1D04-3347.
District Court of Appeal of Florida, First District.
Aug 23, 2005.
908 So. 2d 1164
Per Curiam.
Cited by 10 opinions  |  Published

[*1165] Nancy A. Daniels, Public Defender; Janice G. Scott, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In this direct criminal appeal, appellant seeks review of one of two convictions for sexual battery on a child at least 12 years of age but less than 18 years of age by a person in a position of familial or custodial authority. He claims that the trial court committed fundamental error by instructing the jury that it could convict him of sexual battery by finding sexual union or penetration when the information alleged only sexual penetration. We agree. Accordingly, we are constrained to reverse the challenged conviction and remand for a new trial.

Appellant was charged with two counts of sexual battery on a child at least 12 years of age but less than 18 years of age by a person in a position of familial or custodial authority. The first count of the information, which is the subject of this appeal, alleged that appellant "engaged in sexual activity with the [victim] by penetration of [the victim]'s mouth by [his] penis. . . ." At trial, the court instructed, without objection, that the jury could find appellant guilty on the first count if it found that appellant "committed an act upon [the victim] in which the sexual organ of [appellant] penetrated or had union with the mouth of [the victim]" (emphasis added). The jury returned a verdict finding appellant guilty as charged as to that count. This appeal follows.

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 information. Vega 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). Based on this authority, we are constrained to conclude that the trial court committed fundamental error by instructing the jury on an alternative theory (sexual union) not charged in the first count of the information. Since the jury returned a general verdict of guilty as to that count, it is impossible to determine whether appellant was convicted of a charged or an uncharged offense. O'Bryan, 692 So.2d at 291. Accordingly, we reverse appellant's conviction as to the first count of the information[*1166] and remand for a new trial on that count only.

REVERSED and REMANDED with directions.

WEBSTER, VAN NORTWICK and LEWIS, JJ., concur.