                                     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

                                           5
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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